Understanding When a Modification of Alimony Is Justified under New Jersey Divorce Laws
When the terms of a divorce for men are negotiated or crafted by a New Jersey judge, the order will be based on a evaluating a number of factors that at the time of the divorce. However, there are many unanticipated situations that may arise later that impact the need for alimony from the recipient spouse or the ability to pay by the obligated spouse. However, modifications of alimony can be difficult because the party seeking to modify alimony cannot obtain a change simply because the party is having a hard time making ends meet under the current alimony order.
There are many common scenarios that usually give rise to requests to modify (reduce/terminate) alimony, including the following:
- Loss of employment by either spouse
- Serious illness affecting the ability to pay
- Significant increase in the recipient spouse’s income
- Remarriage of the recipient spouse
- Changes in cost of living
- Significant unanticipated involuntary decline in earnings
- Business failure
- Substantial changes in your compensation package from employment
- Other significant changes impacting need and ability to pay
The standard that must be met for the court to consider a modification of alimony is a “substantial change in circumstances.” This means that the change must be significant enough to have a material impact on the paying spouse’s ability to pay the existing order or on the financial needs of the recipient spouse.
Further, the change in circumstances also must generally be something that was not anticipated when the alimony order in the judgment was calculated. While retirement may be a basis for modification of a custody order, for example, this may not be sufficient if you retire a year after negotiating an alimony amount during your divorce. The court may determine that there was not a “substantial change in circumstances” because the retirement should have been contemplated at the time of the divorce settlement.
It is very important that those seeking to modify or terminate alimony understand that a change in income will only be considered by a court if it was “involuntary.” This means that if a person decides to give up a lucrative medical practice to fulfill the party’s dream of writing fiction, the court will typically not modify a spousal support order related to reduced income from these types of voluntary career changes. Similarly, if you choose to take early retirement, the retirement may not justify a change in alimony unless it is related to a significant medical condition that makes early retirement a medical necessity.
Common reasons for change of circumstances are substantial increases or decreases in income, newly obtained employment, unemployment, marriages, births, deaths and other major life changes.
Specifically, courts have found a change of circumstances in the following instances in an increase in the cost of living; increase or decrease in the supporting spouse’s income; illness, disability or infirmity arising after the original judgment; the dependent spouse’s loss of a house or apartment; the dependent spouse’s cohabitation with another; subsequent employment by the dependent spouse; and changes in federal income tax law.
Additionally for child support modifications, increases in the child/children’s needs, whether occasioned by age, increases in the cost of living or more unusual events, have been held to justify an increase in support. Conversely, their emancipation or employment can be reasons to reduce or eliminate child support.
Additionally, many support obligations are pursuant to written settlement agreements, commonly called property settlement agreements or other agreements like a consent order. These obligations, as well as the requirements necessary to modify them, are often defined him as in these writings. The public policy of New Jersey is not to rewrite a party’s agreement but only to enforce it. This means that, in many cases, the circumstances by which a court can modify a support obligation are solely limited to the terms agreed to between the parties in their own agreement.
To that end, many agreements have what commonly referred to as an “anti-lepis”clause which derives its name from the lead case of Lepis v. Lepis, 83 N.J. 139, mentioned above. This is a case that best defines the circumstances for modifying as well as many circumstances to refuse a modification. Many, if not all, attorneys include a provision in settlement agreements providing a prohibition against future modifications for alimony. An anti-Lepis clause is unenforceable for child-support purposes as contrary to public policy.