The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com part 4 of 6

28. I was recently divorced a few years ago back, and was ordered by the judge to pay outrageous alimony ex-wife alimony. Since my divorce, my ex-wife got a new job and she now makes “buku” money. She has also been living with another man for the last few years, and she now tells me that she won’t marry him because it would stop her alimony payments. Life just does not seem fair. Do I have any legal recourse in the court system?

Yes, you certainly do have some legal recourse. An alimony award is not set in stone and it does not necessarily means that it lasts forever, even if it is permanent alimony. Alimony can always be changed due to a change of circumstances of the parties. A substantial increase in earnings of the recipient spouse can reduce the economic need, and thus reduce or even eliminate alimony. The reduction in the ability to pay can also be considered to be a material change of circumstances to justify a reduction or even the termination of alimony. The courts often view retirement as an important factor in any alimony reduction application.

It is very difficult to prevail in a motion to reduce alimony. Alimony  can only be reduced if a  you file a motion for a termination/reduction of alimony. Therefore, you should file your your motion for a reduction as as soon as possible. On the bright side if you file your motion quickly, then a court may reduce your alimony on a retro basis as of the date of the filing of your motion. Unfortunately, until the court decides whether to reduce your alimony, you are still required to continue to make your alimony payments. If the alimony reduction/termination is deemed retroactive, then you may be entitled to receive a refund from your former spouse. However, don’t count your chickens before the are hatched. It will be all but impossible to collect from her. In summary, you have a bona fide motion to reduce alimony based on the grounds that; a) your wife’s income is substantially higher; and b) cohabitation with a male companion.

29. My husband is legally requires to pay alimony to his ex-wife. She is 55 years old and my husband is 72. They have no kids together. We know for a fact that she is living with her first husband, the father of her children. Because she is living with him, does my husband still have to continue to pay alimony?

Yes, alimony can be terminated on the grounds of cohabitation. New Jersey law now permits for or the reduction or termination of alimony if the paying spouse can prove: 1) the former spouse receiving the alimony with a companion; and 2) the recipient spouse spouse is has a dependent relationship with the cohabitant.

The mere fact that the former wife is living together is not by itself of proof to reduce or terminate alimony. You have simply gotten past the first prong. The payor spouse still has the burden to prove that the cohabitating couple provide economic benefit to each other, and that they have a marital type relationship. To make this determination, the family court will have to analyze the  nature and extent of the relationship, including how long they have lived together, and the extent to which they have shared their assets and income. If this type of a dependent relationship is proven, then alimony can be reduced or even terminated.

30. My former wife has filed a motion for an increase of alimony after I have been paying her for 17 years. Does my ex-wife has a chance to prevail?

Maybe, nothing is impossible in the world of the family courts. An illustrative case is Murphy v. Murphy, 313 N.J. Super 575 (App. Div. 1998). Here, the ex-wife moved an increase in alimony after 17 years. The wife claimed that she had an increased need, and her former husband made a lot more money. The family court granted her the application for the increase in alimony from $60 to $650. The enraged husband then appealed. The Appellate Division affirmed the decision to increase alimony. However, the Appellate Division did remand the case to assess whether the wife could contribute to her standard of living, and to assess the reasonableness of the increase. In summary, every case is different in the family courts. In the Murphy scenario, one judge might blow off the applicant. However, another judge might not hesitate to grant the ex-wife an increase.

31. How does the legal concept of the “ability to pay” interplay with the “change of circumstances” test that is required to reduce alimony?

In many alimony reduction cases, the payor loses the motion, but it is clear to the court that he just can’t pay the alimony any more. This is a paradox but this type of legal reasoning is prevalent in many motions to reduce alimony. An interesting case is Mundie v. Mundie, A-3190-07, T13190-07T1. Here, the defendant/husband filed an appeal of the denial of his post divorce judgment application to modify his child support and his limited duration alimony.

The Appellate Division held that the defendant’s alimony obligations may not be modified based on changed circumstances because the PSA prohibited any modification of the alimony payments. This type of clause is called an anti-Lepis clause. Nonetheless, the Appellate Division reversed and remanded the case to permit the family court to fix a reasonable schedule for the payment of his alimony obligations based on the defendant’s current ability to pay. Here, the Appellate Division would not reduce his alimony because the parties had a anti-Lepis clause in the PSA. In the PSA, the parties agreed that the limited duration alimony could not be modified unless defendant became physically disabled or plaintiff cohabited with an unrelated male.

This case illustrates that if you are desperate, and if you can’t meet the Lepis standards to reduce alimony, then your fall back position is to focus on “ability to pay” legal arguments. This type of argument may not be successful in getting the alimony reduced, however, it may buy you some time to get another or get situated. In summary, if you go into court in good faith, but you don’t have a strong Lepis case, then a “ability to pay” game plan may get you some where.

32. My ex-husband just lost his job as a Wall Street trader. He was making approximately $250,000 per year. I got a sweet divorce settlement of $1, 500 per week of alimony. He has just filed a motion to reduce my alimony payments? He is such a shyster because he claims he is poor, but he is still living the life of “Riley.” Does my ex-husband have any chance to reduce my alimony?

Probably not, however nothing is ever a given in the family courts. You will have to focus on the fact that your ex-husband’s lifestyle has not  deteriorated even though he lost his job as a wall street trader. An interesting case is Ennico v. Ennico, A-6525-06T and A-6525-06T2 . Here, the plaintiff Roddy R. Ennico appeals from denial of his motion to  terminate his alimony former wife.

After a twenty-six year marriage, the parties were divorced in 1997. The parties had three kids and they were all emancipated. In the PSA the plaintiff agreed to pay his defendant/wife the sum of $6,000 per month. At the time, he was employed in the securities industry on Wall Street, and he was earning a salary of about $200,000 per year.

Thereafter, in 1998, plaintiff lost his job, and he had to wipe out  his savings and sell his assets in order to meet his daily living expenses, and to pay his alimony payments. As a result, he applied to the family court for a reduction in his alimony payments. The plaintiff’s employment expert at that time indicated that plaintiff’s future employment prospects were likely to result in earnings of between $50,000 and $100,000 per year. Moreover, the plaintiff indicated that his net worth was only $188,399. The parties reached a settlement and alimony was reduced to $2,500 per month.

Meanwhile, the defendant wife, who was a full-time homemaker for most of the marriage, states that she modified her lifestyle in light of this reduction in her alimony. She sold what she describes as a luxury town home in favor of a smaller, older and less expensive home in a retirement community. She was able to obtain a position earning $12 an hour which she held until the company went out of business in late 2000. She now does some babysitting to supplement her income. In her certification to the court, she indicated that her monthly income consists of alimony, her share of plaintiff’s pension totaling $329 a month, babysitting income totaling $430 a month, and payments from her individual retirement account (IRA) totaling $500 a month. These sums cover her expenses of $3,364 a month, with a few hundred dollars to spare. At the time of the application below, she had assets, including the equity in her house, of $489,600.

Since the modification agreement, the plaintiff relocated to California with his second wife. He also suffered a major heart attack and has been diagnosed with triple vessel disease. However, he did not submit any medical evidence that he was  medically unfit to work. He was able to obtain a job earning about $90,000 per year. However, this job ended in 2004. The next year plaintiff and his second wife established a mortgage business, investing their personal assets in that business. Unfortunately, the business failed a year later in 2006. Their gross income for 2006, as reflected on their personal federal income tax return was $80,949.

As a result of these financial setbacks, the plaintiff then filed a second post-judgment application seeking to terminate his obligation to make alimony payments. At the time of the application, the plaintiff was unemployed and he was spending down his assets to pay his alimony and living expenses. A review of plaintiff’s 2007 Case Information Statement (CIS) reflects that plaintiff’s monthly household expenses total $17,045, exclusive of the alimony payments. These expenses include a mortgage payment of about $3,600 a month on a $1.1 million home in California, lease payments for two Mercedes Benz vehicles for plaintiff and his second wife, debt service of $3,918 per month, and expenses for his second wife’s grandchild. The court noted that the plaintiff’s expenses are in stark contrast to defendant’s living expenses of only $3,364 per month. The plaintiff’s 2007 CIS indicates that his net assets are valued at $265,200, and this includes his share of the equity in his home.

Ultimately, the family court denied the plaintiff’s application to terminate his alimony payments.The family court ruled that the plaintiff  make a prima facie showing of a change in circumstances. The court found that in fact, that the plaintiff’s income had increased from 2000 to 2006. In 2000, Plaintiff had been unemployed, while in 2006, Plaintiff earned $80,949 gross, according to his own 1040. Accordingly, the court found that no plenary hearing was necessary.

The family court further held that the plaintiff was voluntarily and temporarily underemployed. Finally, the family noted that the plaintiff’s CIS proved that he was still living a luxurious life. His CIS revealed that he paid for leases on luxury cars, a mortgage on a luxury home, and childcare for the grandson of his new wife, and his extravagant monthly budget in excess of $17,000. Thereafter, the desperate Mr. Ennico appealed. The case was affirmed. The Appellate Division held that the plaintiff’s application had not merit. The court noted that the plaintiff’s unemployment was only temporary and that he continued to live a lavish lifestyle.

In summary, many similar motions just like Mr. Ennico’s motion are on the docket, or will soon be in the coming years. Wall Street has been wiped out and many traders who have enjoyed lavish lifestyles have been cut down to size by the mini-depression. In any of these type of cases, the parties will have to focus on the expenses as delineated in their CIS. Great care must be spent reviewing and analyzing the CIS statements. According to the Ennico case if the payor spouse’s lifestyle does not suffer as a result of the loss of income, then the motion to reduce alimony has no merit and it will likely be denied. In short, the court is saying that you can’t get equitable relief unless you truly deserve it. You can’t have your alimony reduced if you still have a Mercedes and if you live in a multi-million dollar home. Therefore, if a web-surfer has a similar type of scenario, then you must make sure that your lifestyle and the items as listed in your CIS “jive” with the story that you are trying to sell to the court. If it does not, then your motion for an alimony reduction will go no where.

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