This is not an article about the titular star of Steven Spielberg's Indiana Jones, but maybe it should be. Only Harrison Ford's character would be able to navigate the patchwork of decisions that incorrectly and inconsistently construe the prima facie burden needed to establish cohabitation under N.J.S.A. 2A:34-23(n). Indeed, notwithstanding the opinion in Temple v. Temple, 468 N.J. Super. 364 (App. Div. 2021), courts continue to misapply N.J.S.A. 2A:34-23(n) when determining whether a litigant presented a prima facie showing of cohabitation. This showing is the first hurdle for spouses who seek termination or suspension of alimony based upon cohabitation. Unfortunately, the post-Temple decisions continue to misapply N.J.S.A. 2A:34-23(n) by setting an artificially high prima facie burden and ignoring the crux of Temple's holding: that the prima facie burden should not be an insurmountable obstacle akin to Indiana's travails.

To fully understand "cohabitation," a brief history is required. In 1983, the Supreme Court decided Gayet v. Gayet, 92 N.J. 149 (1983). The Court held that a change in circumstances based upon cohabitation results if: "(1) the third party contributes to the dependent spouse's support, or (2) the third party resides in the dependent spouse's home without contributing anything toward the household expenses." Id. at 153. Thereafter, the Court decided Konzelman v. Konzelman, 158 N.J. 185, 202 (1999), a case that included an agreement with a cohabitation-termination provision. The Court held: "[c]ohabitation involves an intimate relationship in which the couple has undertaken duties and privileges that are commonly associated with marriage. These can include … living together, intertwined finances such as joint bank accounts, sharing living expenses and household chores, and recognition of the relationship in the couple's social and family circle." Id. at 202. Later, in Quinn v. Quinn, 225 N.J. 34, 49-50 (2016), the Court held that once alimony is terminated pursuant to a Konzelman provision, it may not be reinstated. Notably, in dissent, Justice Albin wrote: "Anti-cohabitation clauses under Konzelman permit the forfeiture of the right to alimony even if the cohabiting ex-spouse receives no financial support from the person with whom she resides." Id. at 60 (emphasis added).