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

37. I have just lost my job and I simply can’t keep up with my alimony payments. What are some good tips to enable me to try to reduce my alimony?

If you listen to the news, then you are constantly hearing about how the banks are failing, the stock market has crashed, people have lost one half of their retirement savings, and how the auto industry is dying. However, unfortunately you don’t hear all that often as to how the economic meltdown is wreaking havoc on many New Jersey families. In this day and age a new harsh reality is lurking all throughout the Garden State; many people are unable to keep up with their child support and alimony payments no matter how hard they try. As the economic meltdown show no sign of stopping, many newly unemployed divorcees simply can’t find work to enable them to pay for their alimony and child support payments.

With the unemployment rates New Jersey at record high rates it is no surprise that many New Jersey’ites are unable to keep up with their alimony payments. These distressed alimony payors simply do not have the ability to pay anymore. There are legions of good, hard-working, and solid New Jersey citizens who are not irresponsible deadbeats. On the contrary, they are just unable to meet their financial obligations in this tough economy. Don’t despair! There are many legal options within the New Jersey court system to try to have  alimony payments reviewed, and possibly reduced, and even in some cases terminated for good. However, it is imperative that you must provide detailed proof that you have lost your job, or you have received a sizable cut in your paycheck, your commissions are not coming in, or your overtime has been cut.

Here a seven tips for an economically distressed person who is having a difficult time keeping up with his alimony, and who is also considering filing a motion for an alimony reduction.

a. You should contact an experienced family lawyer and immediately file a motion to reduce/terminate alimony. The family courts are fully aware of the terrible economy, and they will provide you with alimony relief if you can prove to them that you deserve it. The worst thing that you can do if you have lost your job, or if your income has been drastically reduced is to simply do nothing and hope that your alimony just disappears.

b. If you are on good terms with your ex-spouse, then you should immediately talk to her and explain to her your predicament. Moreover, you should ask her if she would be willing to accept a reduced  alimony payment until you are back on your feet. If you are suffering  really hard times, then you could even ask her if she would give you a grace period of not making any alimony payments until you find a new job. If you are fortunate, and if you are able reach an agreement with your ex-spouse, then you should retain a lawyer to formalize your agreement so that it becomes legally binding!

c. Even if your ex-spouse does not agree to a modified alimony plan, then you should at least make some good faith payment partial payment(s) each week. You should try to pay as much of your alimony as possible. If you file a motion to reduce alimony, then if you submit proof that you have made partial alimony payment(s), then this will be viewed most favorably by the court.

d. You must be prepared to provide detailed documentation to the court to prove that your income has bee substantially reduced. If you are unable to provide adequate documentation, then the court will deny your motion”in a jiffy.” Under New Jersey law, you must prove that there are a material “change of circumstances” to justify a reduction in your alimony. There is no set percentage that your income has to be reduced in order to file a motion for an alimony reduction. However, the reduction in your income must be substantial enough so that it impacts upon your ability to “make ends meat” and to keep up with your child support and alimony payments.

e. If you file a motion to reduce your alimony, then you also should keep detailed records of your job search. In your motion, you should attach any agreements that you have with headhunters, any e-mails that you have send to potential employers, any listings that you have placed with Monster.com or any other employment related websites, and copies of any rejections letters. The family courts are obsessed with documentation. The more documentation that you can provide the better.

f. If you have lost your job, and if your former spouse is gainfully employed, then you might want to consider whether you might qualify for receiving alimony from your former spouse. You may consider filing a motion for alimony against your former spouse to help you meet your financial needs until you are able to find another job.

g. Finally, you should consider whether you should try to file a motion to terminate alimony because of the passage of time since the date when the judgment of divorce was originally filed. There are many major grounds to terminate alimony. Perhaps your ex-wife now earns even more money than you do. If this is the case, then there is no longer an economic need for alimony for your spouse to still receive alimony, and you would have an excellent chance to prevail on your motion. Perhaps, you can file a motion to reduce alimony based on your health condition. Maybe, you can file a motion to reduce alimony based on the grounds that your business has failed. A motion to reduce alimony can also be filed if you have retired. Get the point, there are many reasons why alimony can be reduced or even terminated. However, only an experienced family lawyer can give you the “low down” on your chances of success.

38. I have just lost my job as an accountant at a major accounting firm where I was making $100,000 a year. I just accepted another job as an accountant, however, I am now only making $50,000 per year. This was the best job that I could find after many weeks of searching. I now pay $250 per week in child support for my two kids, and $200 per week in alimony. What are my chances of success if I file a motion to reduce my child support and alimony?

In my professional opinion, I believe that you have an excellent chance to prevail on your application to reduce your alimony. However, the standards to reduce child support are even more difficult than the Lepis standards. The key issue is whether you are voluntarily underemployed. If a court finds that you are underemployed, then it will deny your motion to reduce support, and impute income to you. A very illustrative case is Dorfman v. Dorfman, A-1462-97T3, and A-1754-97T3. Here, the defendant/husband was an accountant and he married in 1988, and he was divorced in 1995. He had two kids. The judgment of divorce provided that his child support would be $310 per week and alimony of $150 for three years. These support figures were calculated when the defendant was employed as an accountant for a major accounting firm and earning a six figure salary.

In September 1996, the defendant was terminated from his seventeen year employment with a major accounting firm. Shortly thereafter, he accepted another job at another accounting firm for only $60,000. Thereafter, the defendant filed a motion to reduce his alimony and child support based on a change of circumstances. The family court judge denied the motion. The court found that the defendant did not demonstrate a change of circumstances, and he also imputed his former salary of $100,000 to the defendant. Thereafter, the defendant appealed.

On appeal, the Dorfman court held that the defendant was not underemployed. The court noted that Mr. Dorfman was involuntarily terminated from is job. The defendant was not fired for any type of misconduct. Moreover, the court was impressed that Mr. Dorfman immediately looked for work immediately after he lost his job. Thus, the Appellate Division reversed the denial of his motion to modify his child support and alimony.

In summary, the Dorfman case is an important one in the Lepis progeny. This holding indicates that the court will evaluate whether the applicant is making a good faith application to reduce support. Some key areas of inquiry are whether the applicant has made earnest efforts to find another job.  Has the applicant “loafed” around since he lost his job? Has the applicant made partial support payments even if he has lost his job? How is the job market for the applicant’s field? Does the applicant have any type of savings available to pay support from? Each case is made on a case by case basis. However, your scenario appears to be similar to the Dorfman case. Nonetheless, you will be legally required to prove to the court that the new job that pays you only one half of your old salary is the best opportunity that you have available. If you accept a lower paying job in good faith, and if it is the best opportunity available to you, then most judges will still grant you a reduction of child support and alimony. However, most judges will require you to come back to court in six months, and then evaluate whether you have any other more lucrative employment opportunities available.

39. My husband filed a motion to terminate my alimony payments. Unfortunately, the family court granted the motion and now I feel helpless. I am shocked that the motion was granted, especially given the fact that my ex-husband is an former bank executive and he still enjoys a very high standard of living. What are my chances of obtaining a reversal if I file an appeal?

If you should file an appeal, then you have a very good chance of winning. However, you will have to prove to the Appellate Division that the family court overlooked the fact that your former husband still enjoys a very fine standard of living. An illustrative case is Welland v. Welland, A-5560, November 5, 2008. Here, this was a post-judgment matrimonial case. The plaintiff-wife appealed an order that terminated her alimony payments. The parties were married on December 22, 1968 and divorced on April 21, 1997. In the PSA, the parties agreed that the husband would pay the wife $120,000 a year in alimony at the rate of $10,000 per month. The defendant was employed as a senior vice president of Citicorp. In 1999, the defendant was terminated by Citicorp after an investigation revealed that he had accepted lavish trips from vendors. The defendant claims that he has been unable to obtain employment in his field since he was terminated from Citicorp.

In the year of 2000, the husband filed a motion to terminate alimony based upon a chance of circumstances. The parties entered into a consent order that reduced alimony to $8,000 per month.

In the year of 2007, the defendant once again filed another motion to terminate alimony. The grounds for this motion was that the defendant was now retired because of his age of 64. Moreover, the defendant alleged that his age precluded him from obtaining employment. The defendant’s motion was granted and alimony was terminated on March 15, 2007. At the time of the motion, the defendant still owned two homes, one in Long Branch, NJ and the other one in Lutz, Florida, with his new wife. Moreover, the defendant also owned several vehicles and motorcycles. The court noted that the defendant did not live a lifestyle commensurate with a $40,000 income.

The wife appealed the termination of her alimony. Moreover specifically, the defendant alleged that the family court erred in failing to analyze the defendant’s motion under the changed circumstances doctrine. The plaintiff maintains that the defendant is voluntarily unemployed and should not be relieved of his alimony obligation. The case was reversed. The Appellate Division held that the family court should not have ruled on this motion be simply relying on conflicting certifications. Moreover, the court held that the family court made credibility determinations based solely upon the defendant’s certification and documents submitted in support of his claims. Thus, the Appellate Division remanded the case back to the family court for a plenary hearing.

There are two major points to the Welland case. First, if you are defending against a motion to terminate alimony, then it is important to focus on the lifestyle of the payor. If the payor still enjoys a lavish lifestyle then there may be no legitimate need to reduce alimony. Second, the major trend in alimony reduction cases is to grant the parties a plenary hearing. As long as the certifications are conflicting, and they are in all of the cases, the progeny of alimony reduction cases all indicate that a Lepis hearing should be granted. The termination of the right to receive alimony is an important legal right. Certainly, an alimony recipient can cite the Welland case in support of the proposition that she is entitled to a full plenary hearing before her alimony is terminated.

40. Does a career change constitute a “change of  circumstances” to  justify a reduction in child support and/or alimony?

This is a very difficult question, and the answer it would most likely depend on the individual judge that handles your Lepis motion. Moreover, you will have to give a real concrete explanation why you are forced to change to change your career. Your case will depend on a careful evaluation of the “reasonableness” of your decision, and the “relative advantages” of your decision. The court will weigh the totality of the circumstances. See, Storey v. Storey, 373 N.J. Super 464 (App. Div. 2004).

The court will weigh the following factors when it rules on your motion;

a. The reasons for the career change;
b. The reasons for leaving your prior employment;
c. The reasons for selecting the new job;
d. The disparity between prior and present earnings;
e. Your efforts to find work at a comparable pay;
f. The extent to which the new career draws or builds upon education, sills and experience;
g. The availability of work;
h. The extent to which the new career offers opportunities for enhanced earnings in the future;
i. Age and health;
j. The former spouse’s need for support.

See, Storey v. Storey, 373 Super. 464 (App. Div. 2004)

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