United States Supreme Court Justice Potter Stewart described obscenity as: "I know it when I see it." That indefinable standard is akin to the obstacle attorneys face when determining whether a payor spouse has evidence sufficient to make a "prima facie" showing of cohabitation. The purpose of this article is to provide clarity and direction to get past the prima facie hurdle in cohabitation cases. 

Cohabitation litigation continues to flood the courts. This appears to be so for two reasons. First, "cohabitation" remains one of the few areas subject to the prima facie standard of changed circumstances established in Lepis v. Lepis, 183 N.J. 139, 157 (1980), for which there is little published guidance regarding the evidence needed to meet the prima facie standard. Second, the lack of guidance is compounded by many courts' misapplication of "prima facie." Often, courts require a payor who files a cohabitation motion to meet a seemingly higher initial burden. Consequently, the prima facie showing is more challenging in cohabitation matters because the payor often cannot access direct evidence of, for example, "intertwined finances," without discovery. Yet, remarkably, trial courts rely upon "credible evidence in the record"—dueling certifications without a plenary hearing—to dispose of cohabitation motions at the embryonic stage. Notwithstanding the frequent misapplication of the standard, prima facie is by definition a low burden; it is evidence "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved to be untrue …." Black's Law Dictionary (11th ed. 2019). Indeed, a movant is only required to certify to facts that outline the basis of an allegation and/or provide circumstantial evidence. Stamberg v. Stamberg, 302 N.J. Super. 35, 44 (App. Div. 1997).