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Termination of Alimony - Post Judgment

There is a plethora of case law in the area of post judgment termination of alimony. Since time is limited, I can only comment broadly on the topic and outline some of the more important cases.

The most often cited case for the post judgment termination of alimony is Lepis v. Lepis, 83 N.J. 139 (1980). The Lepis court held that when changed circumstances substantially impair the dependent spouses ability to maintain the standard of living set forth in the judgment of divorce, a modification of the support order might be necessary. Id. at 153

Burden of Proof

Lepis requires that a party seeking the modification of a support order make a prima facie showing that changed circumstances have impaired the dependent spouse's ability to maintain the standard of living set forth in the divorce judgment.

To determine if changed circumstances exist the court considers:

  • A dependent spouse's needs;
  • The dependent spouse's ability to contribute to the fulfillment of those needs; and
  • The supporting spouse's ability to maintain the dependent spouse at the former standard
  • Whether the agreement or judgment makes provision for the change of the support order

In the case of a dependent spouse seeking an increase, she must make an initial showing of changed circumstances before the moving party's ability to pay becomes an issue. If she is successful discovery should be ordered and possibly a plenary hearing.

Some specific examples set forth in Lepis as circumstances that may warrant a modification of alimony include:

  • An increase in the cost of living
  • Increase or decrease in the supporting spouse's income

    In order for a supporting spouse to be successful in an application to modify support based upon a decrease in his or her income, it is important that the decrease be involuntary. Case law clearly sets forth that a party may not find himself in, and choose to remain in a position where he has diminished or no earning capacity and expect to be relieved of his support obligation. Arribi v. Arribi, 186 N.J. 116 (Ch. Div. 1982).

    The problem of "voluntary" vs. "involuntary" often arises in the context of early retirement. The inquiry is fact sensitive. The court looks to the reason for the retirement, as well as whether the advantage to the retiring party will outweigh the disadvantage to the dependent spouse. Deegan v. Deegan, 254 N.J. Super 350 (App. Div. 1992).

    When a party retires in good faith upon reaching the age of 65, the court has held that the retiring party is entitled to a hearing to determine if the retirement constitutes a sufficient change in circumstance. Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div. 1993).
  • Cohabitation of the dependent spouse

    The important factor in post judgment termination cases involving cohabitation of the dependent spouse is whether the relationship has reduced the financial needs of the dependent former spouse. The Court will consider if the 3rd party is contributing to the dependent's spouse's support or whether the dependent spouse is contributing to the 3rd party's spouse (i.e. living in the household, but not contributing anything toward household expenses) Gayet v. Gayet, 92 N.J. 149 (1983).

    It is the extent of actual economic dependency, not one's conduct as a cohabitant, which must determine the duration of support, as well as its amount. Id. at 154. Court's no longer consider the moral implications of cohabitation.

    A consensual agreement between the parties to terminate or reduce alimony based upon cohabitation does not require inquiry into the financial circumstances or economic status of the dependent spouse, so long as the provision itself is fair. Konzelman v. Konzelman, 158 N.J. 185 (1999) Specific
  • Dependent spouses loss of housing
  • Subsequent employment by the dependent spouse

Up until recently, the focus in a modification of spousal support case was the standard of living set forth in the judgment of divorce. The case of Crews v. Crews, 164 N.J. 11 (2000) has changed that focus and opened the door for new applications for post judgment modification of spousal support cases. The new focus, according to the Supreme Court of the United States should be on the marital standard of living.

As a result of the decision in Crews, the trial judge in either a contested or uncontested divorce case, must make specific findings as to the standard of living enjoyed by the parties during the marriage. The court must also determine whether the parties will be able to maintain that standard post divorce, either with or without spousal support.

The decision in Crews leaves the door open for a traditional Lepis post judgment application for a modification of support. It also opens the door for post judgment modifications where the support provided in the judgment of divorce was not sufficient to meet the marital standard of living if the supporting spouse can then afford to increase support to meet the standard of living.


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In order for permanent alimony to be awarded in New Jersey, the marriage must have lasted at least 10 years and one spouse must have become economically dependent on the other. This type of alimony allows the obligee to maintain the lifestyle to which he or she has become accustomed for the duration of the obligor's lifetime (unless the obligee remarries).
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