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Extending the Length of Alimony
Can alimony be modified?

Alimony can be changed. However, it is not easy to convince a court to increase the amount or the length of an alimony award. Alimony only defines spousal support obligations of a spouse in the present. Spousal support duties are always subject to review and a modification under the legal standard 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 family courts are based on post-judgment applications. The family courts are flooded with applications by ex-wives that seek an increase or an extension of their alimony payments.

Many former wives make it a personal mission to try to have their alimony increased, or the length of their alimony extended. Who can blame them? It is not always easy for an ex-wife to obtain the necessary job skills to enable her to get back into the work force. In many divorce cases it is not an easy task for an ex-wife to be "rehabilitated" and to obtain a decent paying job. Thereafter, many divorced couples spend countless years litigating over Lepis motions that seek an increase alimony.

Can an ex-spouse request alimony after the divorce is finalized?

In many divorces neither party receives any type of an alimony award. The reason that no alimony award was issued is because quite often 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 (i.e., serious illness and an inability to work). In such cases, the sick spouse can then file for an application for alimony even though the judgment of divorce does not provide for any. If the Lepis 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 then carefully examine the financial situation of both parties, the standard of living enjoyed during the marriage, the sick spouse's current medical prognosis, and any other relevant factors.

What is the standard of law to increase alimony?

Alimony can always be increased upon a showing of a "change of circumstances." The party who is seeking an increase in the amount or the length 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 the fuss about that Lepis case?

The Lepis holding is the major case that the family courts use to analyze applications to increase the amount of alimony, or to increase the length of the alimony award. 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 the courts have recognized as grounds to increase alimony:

  • An increase in the cost of living;
  • A decrease in the supported spouse's income;
  • Illness, disability, or infirmity after the divorce;
  • The loss of a house or apartment by the supported spouse;
  • Unemployment by the supported spouse; and
  • The payor spouse earnings have increased.

Who has the burden of proving a "change of circumstances" to obtain an increased alimony award?

The spouse who seeks an increase in alimony has the burden of proving "changed circumstances." If a party proves a change of circumstances then the court will grant the parties the right to conduct 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 requesting an increase in alimony has merit, then it will schedule the case for a plenary hearing. A Lepis plenary hearing can be just as complicated and draining as a divorce case. The court will also issue a discovery order. Lepis hearings 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 family courts are overwhelmed with all types of litigation, 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 justify increasing alimony. This is certainly not an easy burden to satisfy. The courts do not take motions that request an increase in alimony lightly. There must be compelling reasons(s) to justify increasing the amount or the length of an alimony award.

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 ground(s) 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 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 that was enjoyed during the marriage.

Can alimony be extended?

Maybe. Each case is fact sensitive, and the court determines each case on its own individual merits. There is no bright line rule that addresses Lepis motions that request an increase in the amount or the length of alimony. The dependent spouse will have to prove a "change of circumstances" to justify an extension of an alimony award. The court will make this determination based on the payor's ability to pay, both parties' respective incomes, and the dependent spouse's needs. The more comprehensive that the application is prepared, then this increases the odds that the court will grant a plenary hearing.

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."

My rehabilitative alimony award is about to expire at the end of the year. Can I move to convert my rehabilitative alimony into permanent alimony?

For many divorced litigants they still desperately need financial assistance even after their rehabilitative or limited duration alimony award has terminated. Rehabilitative alimony plans often are unrealistic and unfeasible. At the end of the day many ex- wives still are in desperate need for financial assistance from their ex-husbands. In some situations an ex-wife can still file an application to convert a rehabilitative alimony or a limited duration alimony award into permanent alimony. Each case must be analyzed on case by case basis. The standard of review is the basic Lepis "change of circumstances" analysis. Nonetheless, if the ex-wife can prove that there is a strong need for relief, and if the payor spouse is economically sound, then there may be reasonable grounds to pursue a motion to extend the length of the alimony.

Is there any legal authority that would support a motion to convert rehabilitative alimony into permanent alimony?

Yes. There is legal authority that would permit a spouse to file an application to move to convert rehabilitative alimony to permanent alimony. There is caselaw wherein an ex-spouse has been successful in her efforts to convert rehabilitative alimony into permanent alimony.

Carter v. Carter, 318 N.J. Super. 34 (App. Div. 1999).

Illustrative is the case Carter v. Carter, 318 N.J. Super. 34 (App. Div. 1999). Here, after an approximate twelve-year marriage, the parties entered into a property settlement agreement providing, among other things, that wife would receive three years of rehabilitative alimony. The Appellate Division noted that at the parties' divorce hearing, the trial court did not elicit any testimony concerning the circumstances surrounding the rehabilitative alimony provision in the settlement agreement. Within a few years after the alimony expired, the ex-wife moved for a permanent reinstatement of alimony. In her supporting certification, the wife contended among other things, that:

  • She had been unemployed as of the date of the separation agreement but thereafter, while recuperating from injuries sustained in a pre-divorce motorcycle accident (also involving husband), enrolled as a student at the Cittone Institute to become a court reporter. She had not been gainfully employed since the date of the motorcycle collision.
  • Because of knee surgery following the accident, she had been declared permanently disabled by the Social Security Administration and, was awarded (effective several months prior to the filing of her motion), $530 per month as permanent disability.
  • Her permanent disability had caused her to withdraw from court reporting school.
  • Her personal injury claim flowing from the motorcycle accident had been settled for $250,000, but netted her $43,000 after a deduction of attorney's fees and the payment of unreimbursed medical expenses.
  • She had utilized the entire net settlement to defray her living expenses once her rehabilitative alimony payments ceased, as, well as to satisfy additional claims of medical providers.

After a plenary hearing, the trial court granted the ex-wife's claim for permanent alimony. Thereafter, the enraged husband appealed. The Appellate Division reversed the case, and it was then remanded to the trial court. The legal basis for the reversal was that trial court judge did not make specific findings of fact that utilized the statutory criteria set forth in N.J.S.A. 2A:34-23(b). Moreover, the Appellate Division held that the trial court should have more fully considered the parties' prior rehabilitative alimony agreement, the equitable considerations of the passage of time, the husband's current financial obligations incurred after the rehabilitative alimony ceased, the wife's receipt of a net settlement of $43,000, and the fact that the parties' agreement prohibited the wife from seeking a reduction of rehabilitative alimony. Finally, the Appellate Division recognized the concept that the "terms of a negotiated agreement should receive continued enforcement without modification only so long as they remain fair and equitable." Id. at 51.

Milner v. Milner, 288 N.J. Super. 209 (App. Div. 1996).

Another interesting case is Milner v. Milner, 288 N.J. Super. 209 (App. Div. 1996). Here, the husband agreed to pay his wife ninety-four months of alimony. Based upon changed circumstances, the wife then moved to convert her rehabilitative alimony to permanent. The trial court denied her application for permanent alimony. However, it extended the rehabilitative term. The husband then appealed. The Appellate Division reversed and remanded for the entry of an order providing for permanent alimony. In doing so, it noted that:

The record indicates that the parties enjoyed a very comfortable, even if not lavish, lifestyle during their marriage. Although it appears likely that plaintiff's income will increase as the real estate market improves and as she gains additional experience and contacts in the field, there does not appear to be any reasonable likelihood she will be able to attain self-sufficiency at the economic level maintained by the parties during the marriage.

We are satisfied that plaintiff's inability to gain such self-sufficiency justifies the conversion of her alimony from rehabilitative to permanent. The parties had a long-term marriage during which plaintiff stayed out of the workforce for a period of twenty years to raise their three children. Defendant, who now earns in excess of $200,000 per year from his medical practice, has the economic resources both to pay permanent alimony to defendant and to support his new family. In contrast, plaintiff, who is now fifty-five years old, apparently does not have the ability to gain self-sufficiency, and the less than $75,000 she received as equitable distribution at the time of the divorce generates only a relatively small part of the income required for her support. Our courts have frequently recognized that an award of permanent alimony is appropriate under such circumstances.

Shifman v. Shifman, 211 N.J. Super. 189 (App. Div. 1986).

Another insightful case is Shifman v. Shifman, 211 N.J. Super. 189 (App. Div. 1986). Here, the parties were married for approximately fourteen years. Their property settlement agreement provided that, among other things, husband would pay wife four years of rehabilitative alimony. Approximately two years prior to the agreed upon termination date of alimony, the wife moved to increase alimony and to convert the rehabilitative term to permanent alimony. The basis of the ex-wife's motion was that she suffered from a "dysphoric depressive disorder" and a number of physical ailments. The ex-wife claimed that she was disabled and she was not able to function in a work environment.

The trial court denied her application on the basis that wife had failed to demonstrate changed circumstances. Moreover, the trial court held that settlement agreements that provide for rehabilitative alimony must be afforded greater weight and permanency than those providing for permanent alimony. The court also ruled that plaintiff had failed to meet the heavy burden required for modification of voluntary rehabilitative alimony.

On wife's appeal, the Appellate Division affirmed the trial court's decision. However, the Appellate Division affirmed the case on different grounds. It held that there is neither greater weight-given to settlement agreements providing for rehabilitative alimony, nor a heavier burden required for a modification thereof." It reasoned that:

A rule which would make it more difficult to modify rehabilitative than permanent alimony would be an impediment to negotiated rehabilitative alimony provisions. It also would be inconsistent with the basic responsibility of the courts to enforce support agreements without modification only so long as they remain fair and equitable. The basic premise of an award of rehabilitative rather than permanent alimony is an expectation that the supported spouse will be able to obtain employment, or more lucrative employment, at some future date. Therefore, if that expectation is not realized despite reasonable efforts on the part of the supported spouse to obtain employment, this properly maybe viewed as a "changed circumstance" which would justify the continuation of alimony beyond the original termination date. This decision is also notable for its holding that an application to convert rehabilitative alimony to permanent alimony should ordinarily not be filed sooner than six months prior to the predetermined termination date. Id. at 194.

The Shifman court did note that if the supported spouse, despite reasonable efforts, is not able to obtain employment (or more lucrative employment), then this may be viewed as a "changed circumstance" justifying a continuation of alimony beyond the termination date. The court held that the motion was premature because the rehabilitative alimony was scheduled to continue for an additional two years. The court further held that an application to convert rehabilitative alimony to permanent alimony should ordinarily not be filed sooner than six months prior to the predetermined termination date. In closing, the Shifman court did not rule that a spouse had no grounds to seek an increase in the length of the rehabilitative alimony. Instead, the court simply held that the motion must be filed at a later date.

Is there any legal authority that would support a motion to convert limited duration alimony into permanent alimony?

In Gordon v. Rozenwald, 380 N.J. Super. 55 (App. Div. 2005). the Appellate Division considered a case of first impression where a trial court, after a post-judgment plenary hearing, converted a wife's 15-year alimony term to permanent alimony. The trial court also increased the wife's alimony from $10,000 a year to $10,000 a month retroactive to the filing date of wife's motion, and awarded her attorney's fees in the sum of $61,423.

The facts were such that the parties were married for 15 years, during which they had two children. The wife was a stay-at-home mom and reared the children while husband worked. The husband made a comfortable living, earning roughly $215,000 a year in 1981, which allowed the family to enjoy a commensurate comfortable lifestyle in Belgium and, subsequently, in the affluent communities of Bedford, New York and Short Hills, New Jersey.

In 1985, the wife filed a divorce complaint in New York. The parties resolved their marital issues by entering into a written settlement agreement, which provided, among other things, that husband would pay wife permanent alimony. However, the parties' then reconciled and moved to New Jersey. The reconciliation was short-lived and in 1986 wife commenced a divorce action in New Jersey.

In 1987, husband's income was $527,700 a year, and in 1988 he earned $479,500. However, after claiming loss of his job in 1988, husband took another job earning $100,000 a year.

In June 1989, the parties negotiated another settlement agreement, this time providing wife with alimony for a 15-year term at the rate of $10,000 a year. Notably, the parties' agreement preceded the enactment of New Jersey's limited duration alimony statute, which provides, among other things, that the alimony term may only be modified "in unusual circumstances," by ten years. At the time of the divorce, husband was 50 years-old and wife was 45. Husband claimed that the 15-year term coincided with his anticipated retirement at age 65.

By 1990, the defendant had earnings of $256,633, more than double his divorce earnings, and in every year after 1995 he reported earning in excess of $1 million. In 2001, he earned $3,869,637. During the post-judgment period leading up to the wife's application, the wife earned a master's degree and increased her earnings to $46,812 a year.

In October 1998, the wife filed a motion to convert the term alimony to permanent, and to increase support based on changed circumstances, which, as indicated, was granted. The Husband appealed.

The Appellate Division reversed agreeing with the husband's argument that the 1999 limited duration alimony statute, providing, among other things, that the length of a term of alimony shall not be modified except in unusual circumstances, has retroactive application. Finding that wife failed to offer any evidence qualifying her request as befitting "unusual circumstances," it reversed the conversion. The court also reversed the trial court's alimony increase.


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