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Alimony Reduction in New Jersey
Can alimony be modified?
Alimony can be changed. However, it is not easy to convince a court to reduce alimony. Alimony only defines spousal support obligations of a spouse in the present. Spousal support duties are always subject to review and a modification of a "change of circumstances." The seminal case that defines what is a "change of circumstances" is Lepis v. Lepis, 83 N.J. 139 (1980).
Many of my clients mistakenly believe that once their divorce is over, then their problems are over. Unfortunately, these clients are sadly mistaken. More than one half of the cases pending in the courts concerns post-judgment applications. The courts are flooded with applications by disgruntled former husbands that request a reduction and/or a termination of alimony.
Many former husbands make it a personal "jihad" or a "holy mission" to reduce or terminate their alimony. It is not uncommon for a former husband to file an alimony reduction motion once a year, or every other year. The bottom line is that men hate alimony with a passion. Alimony is as equally unpopular as taxes are. It is very expensive to live in New Jersey. Many men after they have taxes, child support and alimony garnished from their paychecks have no money to live on. Moreover, it is very difficult for men to have any disposable money to spend on dating if their entire paycheck is being garnished. Consequently, many men become obsessed with reducing alimony. Many men mistakenly believe that reducing alimony is "their way out." The sad truth is that many men move out of New Jersey if their efforts to reduce alimony are not successful. Many men move to Florida or down south. This makes it much easier for a person to escape the stresses of living in New Jersey, and from the constant threat of being arrested for being delinquent in paying child support and alimony.
Many couples spend countless years litigating over alimony. After many years of litigation, many former wives' really start to question whether receiving the alimony is worth all of the aggravation, and all of the legal fees that they had to incur. Some give up, and are forced to consent to a reduction or a termination of alimony. Some less fortunate former wives' must fight for their economic survival, and fight "tooth and nail" to keep their alimony.
Can a person request alimony after the divorce is over?
In many divorces, neither party receives any alimony. This is because the dependent spouse has sufficient income to support herself, and to maintain a reasonable standard of living. However, unforeseen circumstances may change after the divorce to justify alimony. (Ie., Serious illness and an inability to work) In cases such as these, the sick spouse will file an application for alimony even though the judgment of divorce does not provide for any. If the case has merit, then the court will schedule a plenary hearing to determine if an award of alimony should be made. This type of hearing is also called a Lepis hearing. The court will examine the financial situation of both parties, the standard of living enjoyed during the marriage, the sick spouse's current prognosis, and any other relevant factors.
What is the standard of law to modify alimony?
Alimony can always be modified upon a showing of a "change of circumstances." The party who is seeking a modification of alimony bears the burden of proving that there is a "change of circumstances." The party must show how the changed circumstances have impaired her ability to earn a reasonable living.
What is all fuss about that Lepis case?
The Lepis holding is the major case that the family courts use to analyze alimony reduction applications. These types of hearings are often called Lepis cases. The court in Lepis v. Lepis, 83 N.J. 139 (1980), listed the following as some of the changed circumstances that courts have recognized as grounds to reduce alimony:
What constitutes a "change of circumstances" to warrant a modification in alimony?
There is no clear cut answer to what constitutes a "change of circumstances." The most common scenarios are:
Who has the burden of showing a "change of circumstances" to seek a modification of alimony?
The spouse who seeks a modification of alimony has the burden of showing "changed circumstances." If a party shows a change of circumstance then the court will grant the parties limited discovery. Basically, the parties will then exchange tax returns, pay stubs, and a CIS. The moving party must also prove that the changed circumstances have substantially impaired his/her ability to support himself or herself.
If the court believes that the motion to reduce or increase alimony has merit, then it will schedule the case for a plenary hearing. An alimony plenary hearing can be just as complicated and draining as a divorce case. The court will also issue a discovery order. Alimony reduction cases always seem to last forever. These cases are not as carefully scrutinized as the divorce cases are. It is not uncommon for a Lepis alimony case to be adjourned five or more times. The courts are overwhelmed and they really can't handle all of their volume of cases.
However, before a court will grant a moving party a Lepis hearing, the moving party must convince the court that there are significant life events that warrant reducing alimony. This is certainly not an easy burden to satisfy. The courts do not take alimony reduction motions lightly. There must be compelling reasons to justify reducing alimony.
What factors does a court consider to evaluate a motion to reduce alimony?
When a court considers a motion to modify or terminate alimony, the overriding consideration is whether there has been a "change of circumstances." A court must then compare the parties' lifestyles at the time of the divorce to their current lifestyles.
In the seminal case of Crews v. Crews, 164 N.J. 11 (2000), the New Jersey Supreme Court held that in all alimony reduction cases, the court must compare the standard of living that the parties enjoyed at the time of the divorce to their current standard of living.
If a spouse remarries does this event terminate his obligation to pay alimony?
If the spouse who pays alimony remarries, then this remarriage does not terminate his alimony obligation. If the husband/payor spouse remarries, and if he claims that he can no longer support his former spouse, then this factor alone is not a sufficient change of circumstances to just a decrease in alimony.
If a former wife remarries does this event terminate her legal right to receive alimony?
If the spouse who receives alimony remarries, then any permanent alimony award or term alimony will be terminated regardless of the parties' financial circumstances. The rationale for this is because the supported spouse has entered into a new marital partnership, and the former spouse is not required to financially support this new partnership. If the supported spouse's new marriage fails, then she can't later petition the court to reinstate the first husband's alimony obligation.
Can a spouse file a motion for an increase in alimony?
The courts will examine a spouse's ability to pay alimony and the payee spouse's need for alimony. Sometimes, a supported spouse will file an application for an increase of alimony. The grounds for the motion is that the supported spouse needs additional income to maintain a decent lifestyle. If the payee spouse is not receiving sufficient alimony to live a decent lifestyle, then a post-judgment increase in the payor's spouse's income may justify an increase in alimony. The party seeking to have alimony increased bears the burden of proof to demonstrate a change of circumstance. The courts will also examine the parties' historical standard of living during the marriage.
Can a spouse file a motion for a decrease in alimony?
If a payor's income decreases then he can file a motion to request that the court decrease or terminate his alimony obligation. The payor spouse must demonstrate that the decrease in income and/or salary was bona fide, in good faith, and not reduced in order to avoid and limit alimony. If a spouse is unemployed or underemployed then the court may impute income to him. The court may also analyze a payor's/husband's unearned income and assets to assess the merits of an alimony modification motion(s).
Can alimony be terminated if the former wife now cohabitates/lives with another man?
In some cases if a former wife cohabitates/lives with another companion then this may constitute a "change of circumstances" to justify a change of circumstances. If the supported spouse lives with another man, then the court may reduce alimony. However, cohabitation alone is not enough to reduce alimony. The cohabitation must also be coupled with some economic consequences in order to modify alimony.
The courts use the economic contribution test to determine whether an alimony award to a dependent spouse should be reduced. This test looks to see if the cohabitation is similar to a permanent house situation or a marital like relationship. If the dependent spouse' new companion reduces her financial needs, then alimony may be reduced. Moreover, if the dependent spouse is using alimony to support her companion, then the payor spouse has very strong grounds to reduce alimony.
The payor spouse has the burden to prove that there has been a prima facie showing of cohabitation. The fact of cohabitation triggers a finding of a change of circumstances. Thereafter, the court will schedule a hearing, and permit the parties to conduct limited discovery. The payee spouse then has the burden to prove to the court that there is no economic consequence from the fact that she is living with another man.
In many property settlement agreements there are some very specific clauses as to alimony termination if the former wife lives with another man. The New Jersey courts have enforced property settlement agreements that provide for a termination of alimony regardless of economic circumstances if the payee spouse lives with another man. The courts however will not uphold a property settlement agreement which attempts to control the former wife's social activities through the suspension of alimony. If the property settlement agreement places unfair conditions on a former wife that has nothing to do with her financial status, then this agreement will be declared void.
If my former wife is now living with another man, will I automatically be able to have my alimony obligations reduced?
No, cohabitation only constitutes a change in circumstances if it is coupled with economic consequences. This means that the spouse must receive a real economic benefit by cohabitating/living with another person. If the dependent former spouse if being fully supported by her companion, then the ex-husband may qualify for a reduction or termination of his alimony obligations.
What if my ex-wife moves in with her boyfriend and she never remarries?
In order for cohabitation to be a sufficient ground to reduce/terminate alimony then there must be a permanent relationship. The cohabitation must be of a long-term or permanent nature. The ex-wife and her boyfriend must share living expenses. Staying overnight by either party a few times a month is generally not enough. This is a very touchy subject, because many times ex-wives will intentionally not remarry in order to keep getting support payments, even though they have found a new life long companion.
What is the process to make an application to terminate alimony based on the grounds of cohabitation/living together?
An application to reduce or terminate alimony based on the grounds of cohabitation is a two-part process. First, the applicant must prove to the court that there is a "change of circumstances" to justify discovery and a plenary hearing. Second, he must prove that there are grounds to justify a reduction.
It is important to emphasize that alimony will only be reduced, if the applicant can prove that his former wife receives a real economic advantage by living with her companion. The applicant must prove that their former wife receives real support from her new companion. In many cases, it is impossible for an applicant to prove that his former wife receives support from her new companion.
What is the main case on alimony reduction based on cohabitation?
The main New Jersey case that the courts use to analyze alimony reduction motions based on cohabitation is Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998). In the Konzelman case, a former husband sought to enforce a clause in a divorce decree that provided that his former wife would lose her right to receive permanent alimony if she lived with another man for four continuous months.
In the Konzelman case, the New Jersey Supreme Court held that the family courts must consider the following factors in any Lepis case based on the grounds of cohabitation:
What other considerations must a court consider for modifying alimony if there is cohabitation?
In an alimony cohabitation case, the court also must apply a needs-based test as well. In the case of Gayet v. Gayet, 92 N.J. 149 (1983), the New Jersey Supreme Court adopted the following test for reducing alimony if there is cohabitation:
Basically, a court will make an assessment if the former wife still needs the alimony support to survive. Many former husbands become obsessed when their former spouse resides with another man. Many former husbands mistakenly believe that they have hit the jackpot when their former wife moves in with another man. In many cases, they are sorely disappointed when their alimony reduction case is summarily dismissed. The family courts do not want to impoverish women.
In my experience, most judges will only reduce alimony based on cohabitation. Most judges will not permanently terminate alimony based on cohabitation. Relationships are always fluid. It would unreasonable to permanently terminate an alimony award based on a former wife's new relationship a companion. As we all are aware, people break up all of the time. A court does not want to terminate alimony when there is a real possibility that the former wife could break up with her companion in the foreseeable future.
If a spouse retires does this constitute a "change of circumstances" to justify a termination of alimony?
If a husband/payor has a good faith retirement at the age of 65 then this event may constitute a "change of circumstances" to justify a modification of alimony. The court will also consider several other factors such as; the age of the parties; how the pensions and retirement assets were divided during the marriage; whether the retirement was reasonable; and was the retirement motivated to reduce alimony. Our New Jersey courts have held that when a person retires at the age of 65, he is entitled to a plenary hearing to reduce alimony based on a "change of circumstances."
If a payor spouse retires before the age of 65, then he is subjected to a more stringent standard to have alimony terminated. The court will then balance the benefits to the payor spouse against the disadvantage to the payee spouse. Only if the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse will the court view the retirement as a legitimate change of circumstances which would justify a modification of alimony.
Some other factors that a court considers when it rules on a Lepis application to terminate alimony on the grounds of retirement are: the age and health of the party; his or her motives in retiring; his or her ability to pay support; and the ability of the other spouse to provide for herself.
I have just retired and my income has been cut in half. Can I now make an application to reduce my alimony obligations?
The retirement of the payor/husband may be sufficient grounds to constitute a change in circumstances to reduce or terminate alimony. However, it must be emphasized that retirement alone is not an automatic grounds to terminate alimony. The key issue is whether the payor/husband is retiring voluntarily or mandatorily, and whether his retirement is being taken at the ordinary retirement age, at an eligible early retirement age, or at some other time for some reason. Some basic questions, once answered, will shed some light on the voluntariness of the retirement.
What is the key case that analyzes whether a husband's retirement constitutes a "change in circumstances?"
The key case that analyzes whether a husband's retirement constitutes a "change in circumstances" is Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992). In the Deegan case, the husband elected early retirement, and he sought to modify his alimony obligations based on a change of circumstances. The court held that in determining whether to modify alimony based upon retirement as a changed circumstance under Lepis, the pivotal issue was whether the advantage to the retiring spouse substantially outweighed the disadvantage to the recipient spouse. The court concluded that only if the answer was in the affirmative should the retirement be viewed as a legitimate change of circumstances to justify a reduction of alimony.
In any alimony reduction case based on a retirement, the court must assess whether the husband's retirement was in good faith and otherwise reasonable. The court will also have to assess whether under all of the circumstances it was reasonable for the supporting spouse to retire. The court considers the age, health of the party, the motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement, and the ability of the other spouse to provide for herself.
What is the legal test that the court uses to assess whether an early retirement constitutes a "change of circumstances" to reduce alimony?
Another key case is Dilger v. Dilger, 242 N.J. 380 (Ch. Div. 1990). In the Dilger case, a former husband, who had a pre-existing alimony obligation to his former wife of 30 years, voluntarily retired at the age of 62 _ years. The husband sought to reduce his alimony based on this changed circumstance. The court found that the former spouse's voluntary retirement at the age of 62_ was not made in good faith, and it was unreasonable under all of the circumstances presented. The court noted that a reasonable retirement age would, in most cases, be 65.
In denying his application the court considered the following criteria:
Can my deteriorating health condition constitute sufficient grounds to justify a termination of alimony?
The most common grounds that men use to support a motion to reduce/terminate alimony is a major illness or deteriorating health. The key issue in any alimony case based on illness is the severity of the illness, and it's impact on the payor/husband's ability to earn an income.
In most cases, if the payor/husband has filed sufficient moving papers, then most family courts will grant him a Lepis plenary hearing. These hearings can be extremely expensive to litigate because the applicant will have to produce a doctor(s) to verify his medical condition or illness to the court. Please keep in mind that medical records are hearsay. A lawyer can't introduce the medical records unless they are substantiated by a medical professional. An applicant has two options that he can choose to pursue in a Lepis case based on the grounds of illness or a medical condition. The applicant can retain one doctor to review all of the medical records. Thereafter, this doctor can prepare an expert's report, and testify at court. Alternatively, the applicant can subpoena their treating physician, and compel their appearance at the Lepis plenary hearing. Unfortunately, the later option has its drawbacks. Doctors like to be paid. Moreover, they also don't like to spend their days in court. The doctor may become so upset by being subpoenaed that he/she may drop the applicant as a patient.
In summary, in any Lepis case that centers around a "change in circumstances" based on an illness or medical condition, then medical professionals must be brought in to testify. The doctor will have to prepare an expert's report, and also be willing to testify about his/her findings at the Lepis plenary hearing. In my experience most doctors require a $2,500 to $5,000 retainer to prepare a report of this nature, and to appear at trial. Nonetheless, if the alimony obligation is oppressive, then the high retainer fees to the evaluating physician may well be worth. In my experience, it is almost impossible for an applicant to prevail in an alimony reduction case based on an illness or medical condition, unless a qualified medical expert is brought in to testify at the Lepis hearing.
I was declared to be disabled by the Social Security Administration. Does this event constitute a "change of circumstances" to warrant a termination of alimony?
If a person is declared disabled by SSA, then this event constitutes a change of circumstances to justify a reduction or termination of alimony. In the case of Golian v. Golian, 344 N.J. Super. 337 (2001), the court held that a declaration by the Social Security Administration (SSA) that the wife was disabled and eligible to receive social security benefits was prima facie proof of a disability. Moreover, the court held that a declaration of eligibility to receive social security also constituted a change of circumstances to enable the application to receive a Lepis hearing.
Can a person insert an anti-modification of alimony clause into the property settlement agreement?
In many cases, the parties will insert a clause in the property settlement agreement that would prevent any modification of alimony even if there is a potential chance of circumstances in the future. This type of clause is known as an Anti-Lepis clause. These types of clause have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.
Can alimony be extended?
In most cases no. However, some property settlement agreements provide that a spouse may be entitled to alimony after a certain number of years. A dependent spouse will have to file an application for an increase in alimony. The dependent spouse will have to prove a "change of circumstances" to justify an extension of alimony. The courts analyze these applications on a case by case basis. The court will make this determination based on the payor's ability to pay, both parties' respective income's, and the dependent spouses needs.
Additionally, rehabilitative alimony can be extended beyond the expiration date as specified in the property settlement agreement. The standard once again is whether there has been a "change of circumstances."
Can a former spouse bankrupt his alimony obligations?
If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree is not dischargeable. In short, a husband can't wipe off an alimony obligation in a bankruptcy case.
In New Jersey, a separation agreement is any legal document signed by both spouses outlining the terms of the separation. Subjects resolved in a separation agreement can include child support, child custody, debt allocation and asset distribution. Notarizing the document ensures its validity, since there is no such case-type in New Jersey that provides for a "legal separation." Spouses wanting child support during the separation period, however, must file a claim with the New Jersey probation department.
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