The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com part 5 of 6

33. I made a terrible divorce deal and I have to pay my ex-spouse $300 per week in alimony. I have only been divorced for nine months. I have just lost my job and I can’t afford to pay such a high alimony payment any more. Even though I have only been divorced for a short time,  can I still file a Lepis motion to reduce my alimony?

Probably not, your chances to reduce your alimony are not that great. The ink on your divorce decree has barely dried. The major problem with motion is that you will not be able to prove that your job loss is a permanent one. An illustrative case is Ashwood v. Klenart, Docket No. A-6363-06T3. Here, the defendant appealed the denial of his motion to terminate his permanent alimony. His major argument to the family court was that he suffered a change of circumstances because his business collapsed since the date of the divorce.

Here, the defendant and plaintiff, Janet Ashwood, formerly known as Janet Klenert, were married on April 14, 1973. After a 29 year marriage the parties got a divorce. The family court judge ordered the defendant to pay plaintiff $3,000 per month in permanent alimony. Only after two months after the JOD was entered, the defendant then filed his first motion to terminate his alimony. In his first motion, he maintained that his monthly income had plummeted because he had been laid off from his employment. In November 2006, the family court denied the defendant’s motion to terminate his alimony. The court concluded that the defendant’s reduction in income had lasted for only a few months, and it was was premature to consider a serious motion to terminate alimony so soon.

Only a mere four months later, on March 23, 2007, the defendant filed his second motion to terminate his alimony. The motion was once again denied again by the family court. Thereafter, the defendant appealed. On appeal, the Appellate Division held that it believed  defendant’s good faith effort to find employment. However, the court noted that Mr. Klenart’s motion was filed too quickly. The court cited the case of Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006). In the Larbig case, the Appellate Division upheld a motion judge’s ruling to deny an alimony reduction motion on the grounds “a mere twenty months after the parties’ execution” of a property settlement agreement.” In Larbig, the family court concluded, and the Appellate Division affirmed, that the defendant-movant had failed to demonstrate the change in circumstances was anything other than temporary.

In summary, in the Ashwood case the Appellate Division held that  filing two motions to terminate alimony within a mere nine months of the entry of the JOD was an insufficient period of time in which to conclude that the reduction in defendant’s income was anything other than a temporary one.The defendant’s extreme remedy to terminate his alimony obligation, in two motions filed only months apart, was unwarranted. Therefore, the defendant’s loss of employment had not lasted long enough to justify the conclusion that his loss of income as only temporary.

The Ashwood case is important. This case illustrates that a payor’s change of circumstances must be a permanent one and not only temporary. This case illustrates that a reasonable period of time must pass after the JOD to go back to court and to challenge alimony. In this case, the payor’s best chance for some type of relief is to focus on his ability to pay alimony. He may be able to get some relief on these grounds. Many of my clients are obsessed with trying to reduce or terminate alimony. Having alimony reduced/terminated is often more involved and time consuming the the original divorce case. It is not uncommon for a payor to file a motion for alimony/termination on a periodic yearly basis. Many alimony payors believe that sooner or later they will catch a break, or get another judge who will see their case in a different light. In light of these circumstances, if possible I always advise my clients who receive alimony, to explore a buy of their alimony if possible. It is better to get your money up front, then having to possibly deal with endless motions to terminate/reduce alimony.

34. I owe my wife $30,000 in child support and alimony arrears. These arrears are almost 25 years old. My ex-wife has been off my back for 20 years, however, now she is on the “war path” to collect these ancient arrears. Do I have defense to her collection efforts to collect these ancient arrears?

Yes, you certainly do have an equitable defense to the collection of these very old child support and alimony arrears. A very on point case is Adler v. Adler, New Jersey App. Div., February 9, 2009. Here, the family court judge ruled that the ex-wife’s motion collect alimony and child support arrears was barred on the doctrine of laches.  The wife waited 28 years before she instituted legal action to try to collect past due support payments. The family court held that the wife waited way too long to try to collect these past due support. The case was then appealed. The Appellate Division upheld the family court.  In summary, the Appellate Division held that the wife’s claims to collect the past-due support was barred based upon the doctrine of laches because she waited 28 years to try to collect these arrears.

35. I am a stock broker and I was recently divorced. At the divorce trial, the judge averaged my yearly income for the past five years, and he then used the mean average of my yearly income to establish a ridiculously high alimony award. Two years later, my yearly income has been slashed in half. Is the concept of income averaging a fair and reasonable way to determine alimony?

Trying to negotiate an alimony award is a very heated and debated type of art form. Many people lose their temper and some people even pretend to faint when they are told how much alimony they will have to pay. When a court must determine the length and the amount of an alimony award it is faced with a most difficult task. Determining alimony is not as clear cut of a task as it has been in past generations. In the prior generations, a husband would often have a steady job at a corporation, and he would earn steady paycheck. Now fast forward to our generation X;  companies are now brought out and sold at a rapid pace, they go under in a blink of an eye, and they  also disappear in an instant. Moreover, companies get rid of employees “in a jiffy” just like they are a worn out business machine such as a copier or a fax machine that no longer works. Corporate America certainly does not value human resources as much as they used to. Given this unfortunate scenario, the income of many New Jerseyites fluctuates on a yearly basis. A stockbroker may have earned a high six figure income for most of the past decade. However, after the recent market crash many stockbrokers will be fortunate if they even approach a six-figure income.

A never ending debate is what level of support should a payor’s income be set at to determine alimony if his income fluctuates. Many judges use income averaging to determine a base level of income to determine alimony. Basically, many courts will take the last three to five years of that person’s yearly income and then average them. Unfortunately, in my professional opinion, I believe that there is an over reliance of income averaging to determine alimony. There are many divorce cases wherein income averaging simply does not produce a fair and equitable result. Industries crash and burn. People are downsized. Entire industries are outsourced to India. Companies go under. Income averaging just does not take the X factor into consideration. Thus, a strong argument can be made that income averaging is too simplistic of a formula to determine the correct level of income to determine alimony.

An insightful case is Platt v. Platt, A-1555-04T21555-04T2. Here, the husband/plaintiff and wife/defendant were married in 1980. They had two children. The parties separated in 2001, and they separated in November of 2001. The plaintiff also filed for divorce in 2001. During the marriage, the husband opened up an auto repair shop called Platt’s Performance Plus. At the divorce trial, the court determined that the husband earned $100,000 of annual income, and he awarded the wife $250 week in permanent alimony and child support of $123 per week. The court based this ruling on averaging the companies business income over a five year period.  The husband strongly disagreed with this ruling. He believed this figure of $100,000 was not a fair number, and also that it did not reflect the true income of the company. Thereafter, the husband appealed. The main thrust of the defendant’s appeal was that the judge erred in averaging his income in fixing alimony and child support. The Appellate Division upheld the rulings of family court. The Platt court further held that in the circumstances of this case it was completely logical and reasonable to average the plaintiff’s income over a five year period. Thus, the court held that there was no abuse of discretion in the family judge’s analysis and conclusion.

In summary, many courts are entirely sold on the legal principles of income averaging. However, in many types of industries and fields the principles of income averaging does not always produce a fair and reasonable result. Each type of industry is fact specific, and a different twist of income averaging must be used for each one. In some fields, income averaging may provide the perfect solution to address many pernicious alimony issues. However, in other fields the principles of income averaging may be utterly useless to address any Lepis issues. In closing, using income averaging certainly has its place in determining alimony. However, it should not be the sole method used by a court to determine a reasonable income level for a payor who is either self-employed, or who is in a field wherein his income fluctuates. Just like everything else in the law, income averaging should only be used on a case by case basis. In the stockbroker scenario, if the court followed the Platt reasoning, then it would use the principles of income averaging. However, if the court used basic common sense, then it would realize that given the mini-depression, and the carnage on Wall Street, using income averaging to set support figures for a Wall Street worker would only yield a fair and just result.

36. I was recently let go from my job as a computer technician. I was earning $110,000  per year. I was recently retrained to be a nurse’s assistance. I now only earn $300 per week. My alimony obligation is $450 per week based on my prior earnings. What are my chances of being able to have my alimony reduced?

Your chances of being able to reduce your alimony would depend on many factors. The most significant factor is which judge you reviews your Lepis motion. In my professional opinion, you could have five different judges review your alimony reduction motion, and you would receive five different results. This is simply the reality of the family court system. At the every least, you will probably receive a plenary hearing to enable you to try to convince the court that you need some relief.

An illustrative case is Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004). Here, the plaintiff/husband Mr. Storey appealed from a post-judgment order that denied his request to terminate his alimony. Mr. Storey’s main argument was that alimony must be determined on his present income and not on imputed income. At the plenary hearing, the family court judge imputed $60,000 to him based on prevailing wages for computer service technicians. Thus, the court reduced his alimony from $480 to $280 per week. However, Mr. Storey was still not satisfied because he wanted to terminate his alimony. Therefore, Mr. Storey still appealed even though his alimony was reduced by $200 per week.

On appeal the Storey court upheld the decision. The main focus in the opinion is that when an alimony payor changes his career, he is not free to disregard his pre-existng duty to provide support. See, Deegan v. Deegan, 254 N.J. 350 (App. Div. 1992).  The court also held that an alimony payor who is seeking a reduction based on a reduction of pay because of a career change, must prove that he is working at a capacity that is consistent with his skills and experience. The court held that Mr. Storey did not prove that his career choice was reasonable.

In analysis, there is no easy way out to terminate alimony or to reduce it. An alimony payor is not free to change careers on a whim, and then rush to the family court and tile a motion for an alimony reduction. If you review the case law, it appears that the family courts will only seriously consider an alimony reduction motion based on loss of income from a career change if there is a sense of desperation or compelling circumstances.  For instance, if you are highly paid executive, and if you decide that you want to become a teacher, then you would have to prove to the court that the stress of corporate life is damaging your health. If you a lawyer, and if you want to go into social work, likewise you would have to provide proof to the court that practicing law is damaging to your health. If you want to change careers then you must have a compelling reason(s), and hard proof to court to justify your decision. Some industries are dying. In your situation, it is commonly known that the computer tech jobs are being given to Green Card holders who can do the same job for half the price. Moreover, much of this work is being shipped overseas. If you can provide proof to the court that your job may be phased out, then the family court may buy your plan to be re-trained in the nursing profession.

…..click here to finish this article

For more information about  NJ Divorce Law or to find a New Jersey Divorce Lawyer.  Additional lists of NJ Law firms can be found here.