The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com This is part 1 of  6

1. Can alimony be modified?

Alimony can be changed. However, it is not easy to convince a court to reduce alimony. Alimony only defines spousal support obligations of a spouse in the present. Spousal support duties are always subject to review and a modification 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 courts concerns post-judgment applications. The courts are flooded with applications by disgruntled former husbands that request a reduction and/or a termination of alimony.

Many former husbands make it a personal “jihad” or a “holy mission” to reduce or terminate their alimony. It is not uncommon for a former husband to file an alimony reduction motion once a year, or every other year. The bottom line is that men hate alimony with a passion. Alimony is as equally unpopular as taxes are. It is very expensive to live in New Jersey. Many men after they have taxes, child support and alimony garnished from their paychecks have no money to live on. Moreover, it is very difficult for men to have any disposable money to spend on dating if their entire paycheck is being garnished. Consequently, many men become obsessed with reducing alimony. Many men mistakenly believe that reducing alimony is “their way out.” The sad truth is that many men move out of New Jersey if their efforts to reduce alimony are not successful. Many men move to Florida or down south. This makes it much easier for a person to escape the stresses of living in New Jersey, and from the constant threat of being arrested for being delinquent in paying child support and alimony.

Many couples spend countless years litigating over alimony. After many years of litigation, many former wives’ really start to question whether receiving the alimony is worth all of the aggravation, and all of the legal fees that they had to incur. Some give up, and are they forced to consent to a reduction or a termination of alimony. Some less fortunate former wives’ must fight for their economic survival, and fight “tooth and nail” to keep their alimony.

2. Can a person request alimony after the divorce is over?

In many divorces, neither party receives any alimony. This is because the dependent spouse has sufficient income to support herself, and to maintain a reasonable standard of living. However, unforeseen circumstances may arise after the divorce to justify alimony. (ie., Serious illness and an inability to work) In cases such as these, the sick spouse will file an application for alimony even though the judgment of divorce does not provide for any. If the 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 examine the financial situation of both parties, the standard of living enjoyed during the marriage, the sick spouse’s current prognosis, and any other relevant factors.

3. What is the standard of law to modify alimony?

Alimony can always be modified upon a showing of a “change of circumstances.” The party who is seeking a modification of alimony bears the burden of proving that there is a “change of circumstances.” The party must show how the changed circumstances have impaired his ability to earn a reasonable living.

4. What is all the fuss about that Lepis case?

The Lepis holding is the major case that the family courts use to analyze alimony reduction applications. 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 courts have recognized as grounds to reduce alimony;

  1. An increase in the cost of living.
  2. An increase or decrease in supporting spouses’ income.
  3. Illness, disability, or infirmity after the divorce.
  4. The loss of a house or apartment by the wife.
  5. The former wife’s cohabitation with another man.
  6. Unemployment by the payor/husband.

5. What constitutes a “change of circumstances” to warrant a modification in alimony?

There is no clear cut answer to what constitutes a “change of circumstances.” The most common scenarios are: 1) A reduction in a party’s income; 2) Illness; 3) A spouse is cohabitating/living with an adult member of the opposite sex; 4) Retirement; 5) Refusal or inability to find employment; 6) The receipt of a large inheritance; 7) Support of an ex-wife by her companion.

6. Who has the burden of showing a “change of circumstances” to seek a modification of alimony?

The spouse who seeks a modification of alimony has the burden of showing “changed circumstances.” If a party shows a change of circumstance then the court will grant the parties 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 to reduce or increase alimony has merit, then it will schedule the case for a plenary hearing. An alimony plenary hearing can be just as complicated and draining as a divorce case. The court will also issue a discovery order. Alimony reduction cases 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 courts are overwhelmed 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 warrant reducing alimony. This is certainly not an easy burden to satisfy. The courts do not take alimony reduction motions lightly. There must be compelling reasons to justify reducing alimony.

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