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Termination / Modification of Alimony

The Court may revise and alter spousal and child support orders from time to time as circumstances require. Before a court will modify a support amount it must be established that changed circumstances exist. In determining whether or not changed circumstances exist, the Court generally looks at:

  • The Dependant spouse's needs;
  • The Dependant spouse's ability to contribute to the fulfillment of his/her own needs; and
  • The supporting spouse's ability to maintain the dependant spouse at the former standard. (The marital standard of living is a key component in applications for modify support)

It is important to note that any change in circumstance relied upon by a party seeking modification of a support order must be involuntary.

In making an application to modify a support obligation, the party seeking modification bears the burden of showing the existence of changed circumstances. The party seeking modification must make full disclosure of their financial status, including tax returns, before the other spouse's financial status becomes an issue. Once the moving party has made a prima-facie showing of changed circumstances, the respondent's ability to pay becomes a factor for the court to consider.

The following are examples of events that can constitute changed circumstances:

  • An increase in the cost of living;
  • Increase or decrease in supporting spouse's income;
  • Illness, disability or infirmity arising after the original Judgment;
  • The dependant spouse's loss of a home or apartment;
  • The dependant spouse's cohabitation with another;
  • Subsequent employment by the dependant spouse;

In a divorce agreement, the parties can make specific provisions regarding modification. They can specifically agree that at some point, modification will be necessary. The parties may also agree under what circumstances modification will occur. Conversely, the parties may agree that modification will not be permitted.

When a Property Settlement Agreement specifically provides that alimony will be reviewed upon retirement, a future date, or upon some other triggering event, the standard of review may become an issue. The court may look to whether changed circumstances exist or may choose to consider the statutory alimony factors the legislature has said the court must consider in making an initial award of alimony. These factors are:

  • The actual means and ability of the parties to pay;
  • The duration of the marriage;
  • The age, physical and emotional health of the parties;
  • The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
  • The earning capacities, educational levels, vocational skills and employability of the parties;
  • The length of absence from the job market of the party seeking maintenance;
  • The parental responsibility for the children;
  • The time and expense necessary to acquire sufficient educational training to enable the party seeking maintenance to find appropriate employment; the availability of training and employment; and the opportunity for future acquisitions of capital assets and income;
  • The history of financial or non-financial contributions to the marriage by each party including contribution to the care and education of the children and interruption of personal careers or educational opportunities;
  • The equitable distribution of property ordered and any payouts on equitable distribution directly or indirectly out of current income to the extent this consideration is reasonable, just and fair;
  • The income available to either party through investment of any assets held by that party;
  • Tax treatment and consequences to both parties of any alimony award including the designation of all or a portion of the payment as non-taxable payment;
  • Any other factors which the Court may deem relevant.

This author believes consideration of the statutory factors is the more appropriate standard of review, absent a specific agreement. The changed circumstances approach presupposes that alimony should continue, unless a prima facie change of circumstance is proven. The goal is to maintain the marital lifestyle if possible. However, an agreement to review alimony requires scrutiny of all statutory factors, as they relate to the post-judgment financial environment. It is therefore appropriate that agreements provide what the standard for review will be.

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New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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