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Increasing the Length of Limited Duration Alimony
The general rule is that the term of limited duration alimony can not be extended without "unusual circumstances." A recent Appellate Division opinion Rothfeld v. Rothfeld, A-510-06T3 illustrated what type of unusual circumstances might justify increasing the length of a limited duration alimony award. Jane and Samuel Rothfeld were married for less than seven years when they got divorced. They had two small children who were of the age of 6 and 4 at the time of the divorce. Both parties were also practicing attorneys. However, Mrs. Rothfeld stopped practicing law after giving birth to their first child. The birth of the couple's first child occurred within the first year of the marriage. During the divorce negotiations, the parties negotiated into a PSA and Mrs. Rothfeld was designated as having residential custody of the two children. The father was granted standard visitation. The wife was granted a limited duration alimony award in the amount of $500 per week for a period of four years. Additionally, Mr. Rothfeld was required to pay $500 per week in child support and child care related expenses.
During the divorce negotiations, it was anticipated that Mrs. Rothfeld would be able to obtain part time employment or per diem work in the practice of law. Moreover, during the divorce negotiations, the parties' oldest child was having difficulties with school, and he was being checked out for Attention Deficit Disorder (ADD). Ultimately, the oldest son was diagnosed with ADD, Asperger's, Obsessive Compulsive disorder and a Bi-Polar disorder. As a result of her son's special needs, Mrs. Rothfeld was not able to obtain any employment in the field of law. Based on these hardships Mrs. Rothfield filed a motion to extend the length of her limited duration alimony award. Mrs. Rothfeld argued to the court that she was unable to obtain significant employment that was contemplated at the time of the divorce. Therefore, Mrs. Rothfeld filed a motion to request a continuation of her limited duration alimony, an increase in the amount of alimony, the production of financial information or in the alternative an increase in child support, and to establish a fund for their son's medical care.
The family court denied Mrs. Rothfeld's application in its entirety. Thereafter, Mrs. Rothfeld appealed to the Appellate Division. The Appellate Division reversed the case and remanded the it back to the family court. The Appellate Court held that an award of limited duration alimony may be modified based either upon changed circumstances, or upon the nonconcurrence of circumstances that the court found would occur at the time of the award. The Rothfeld court further held that a court may modify the amount of such an award but shall not modify the length of the terms except in unusual circumstances. N.J.S.A. 2A:34-23(c). In this case, the Rothfeld court found that Jane had established a change of circumstance for an increase in the amount of the limited duration alimony, as well as an increase in the term based upon unusual circumstances.
The unusual circumstances in this case was held to be the health of the parties' eldest child. The court further explained in it's unpublished opinion that a modification to the time for payment of limited duration alimony, as well as the amount, would only be based upon an ability to prove changed circumstances, or upon the non-occurrence of circumstances that the court found would occur at the time of the award. Thus, the burden is upon the party making the application (i.e. the recipient spouse) that circumstances have changed such that a modification is necessary and just. Here, the child's condition was far worse than anyone anticipated at the time of the divorce and Jane simply could not work as contemplated when the matter was settled.
In summary, the Rothfeld case is a very important one. This case gives more "ammo" to a recipient spouse who wants to extend the length of a limited duration alimony award. If a recipient spouse has fallen on hard times, then if there are unusual circumstances, she may have a decent chance to file a motion to extend the length of a limited duration alimony award. If a recipient spouse should become ill then this certainly may constitute grounds to seek more alimony. If the parties' children should also become ill then this may also be a reasonable ground to seek more alimony. If a recipient spouse gets laid off from a job then this also may be a solid reason. Nonetheless, a main theme of New Jersey family court law is that "nothing is written in stone."
If a recipient spouse is "down on her luck" then if the case has "unusual circumstances" then there may be an opening to request more alimony. Just what constitutes "unusual circumstances" is the million dollar question. Some judges may liberally interpret this legal standard. Whereas, some judges may interpret this legal standard very strictly, and simply choose to enforce the limited alimony terms as enunciated in the original P.S.A.
To file for divorce in New Jersey under no-fault grounds, the couple must have been living separate and apart in different residences for at least 18 consecutive months. There must be no hope of reconciliation in the marriage.
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