COURT ORDERS REIMBURSEMENT OF ALIMONY WHERE EX-WIFE CONCEALED NEW RELATIONSHIP

As in most areas of life, one New Jersey Appellate Division alimony case shows that deceit doesn't pay. The case, Dougherty v. Heitmann, involves a couple who had been married for 25 years when they divorced in July of 2009. The property settlement agreement that the couple entered into stated that Heitmann would pay Dougherty alimony for five years or until she moved in with a new romantic partner, whichever came sooner. Heitmann began paying alimony on April 1, 2010. 

Immediately after Dougherty moved out of the family home in Morris County, she told Heitmann that she was living in her own apartment in Passaic County. However, she reported that she had moved to her parents' house in Camden County in November of 2009, despite the fact that this would result in a 1 ½ to 2 hour commute to work for Dougherty in each direction. Heitmann was skeptical, but did not become deeply suspicious until May 2011, when he met R.D., the man to whom Dougherty had become engaged the previous winter. Heitmann recognized R.D. as someone who had helped Dougherty move out of the family home in November 2008. In fact, the couple had been dating since July of 2009, and became engaged in December of 2010.

Heitmann hired a private investigator to determine where Dougherty was living. This investigator documented numerous instances of Dougherty's car parked outside of R.D.'s home all night. Heitmann used this report to file a motion to terminate his alimony obligation in October of 2011. In the process of trying this motion, Heitmann obtained Dougherty's phone records, which showed that she had made calls from R.D.'s home town at all hours of the day and night on 96 days out of the 143 for which he obtained records. During that time, Dougherty had only made calls from her parents' home on 21 days. Supporting this conclusion, Dougherty's EZ-Pass records showed that she had not traveled on roads that would have enabled her to commute from Camden to Morris County each morning. Dougherty testified that she had declined offers to move in with R.D., and that the phone records showing calls from R.D.'s town were due to the fact that she often stayed with friends or in hotels in that area during that time. However, she could produce few receipts and no other evidence to show this. The judge found Dougherty's testimony incredible, while finding Heitmann's evidence convincing.

Dougherty voluntarily terminated Heitmann's alimony obligation in July of 2012, but the judge presiding over Heitmann's termination motion retroactively terminated his alimony obligation to April 1, 2010, requiring Dougherty to pay back $36,000 in alimony received. Dougherty appealed this decision, but the ruling was affirmed by the Appellate Division. The court on appeal explained that, normally when a paying spouse seeks to terminate or modify an alimony obligation when the receiving spouse moves in with someone, there must be evidence that the new romantic partner is supporting the receiving spouse financially, or that the alimony payments are actually going toward supporting the new partner. However, where divorcing spouses agreed that alimony would terminate when the receiving spouse began living with a new partner, the court doesn't need to conduct any sort of factual investigation into finances; if the agreement appears to be fair, the alimony is terminated if the paying spouse can prove that the partners are cohabiting. Since Dougherty's evidence that the couple wasn't cohabiting was unconvincing, and Heitmann had convinced the trial court that the couple was living together beginning in April of 2010, the court on appeal affirmed the trial court's decision retroactively terminating alimony.

If you need help modifying or terminating an alimony agreement, contact the experienced Morristown family law attorneys at Smith & Doran for a consultation, at 973-292-0022.

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