Economic Downturn or Voluntary Unemployment?
The Rise in  Judicial Imputation of Income in New Jersey Alimony and Child Support Disputes

In the past few years, unemployment rates have seemed to skyrocket while State and Federal budgets have appeared to decrease by the day. Meanwhile, friends are losing their jobs, graduates can’t find work, and the hot topic of conversation around every water cooler in the America seems to consistently revolve around one tireless topic: the economy.

It’s no surprise, then, that in courtrooms across the State of New Jersey, divorce attorneys are using the current economic downturn as an explanation for their clients’ drastic decreases in income. While many of these arguments are well received by the Court for perfectly plausible financial reasons, inexplicable professional shifts nevertheless remain highly suspect.

For example, the, “it’s the economy, your Honor,” argument may be inappropriate where the former CEO or graduate-school educated spouse suddenly takes a low-paying job making a fraction of his or her former salary and the income reduction just happens to coincide with an upcoming support hearing. While there may be valid reasons for many of these occupation shifts, if the Court finds that an individual is voluntarily under-employed, the Court has the ability to impute income to that person for purposes of calculating his or her earning capacity and, ultimately, his or her alimony and child support obligations.

While there are a number of ways to show the Court that an individual should be making more money than he or she is currently earning, the most useful ways include hiring a vocational expert or researching the Department of Labor Statistics for a given profession and asking the Judge to impute income using the mean salary for that profession.

If you or a loved one are going through a divorce, or are seeking to file or defend against a motion for post-judgment support modification, you may want legal representation to help you obtain the financial support that you and your children deserve. To set up an appointment with a matrimonial attorney, contact the Law Offices of Kamensky Cohen and Associates at (609) 394-8585.

To find more articles about New Jersey Divorce can be found at New-Jersey-Lawyers.com.  new jersey divorce and family law lawyers can be found at New-Jersey-Lawyers.com , NJLawFirms.net and Njlawyers-NewJerseyLawyers.com

1. How are alimony reduction motions usually decided?

It is very important to emphasize that alimony reduction motions are decided on a case by case basis. This legal concept often makes many litigants very upset and some even enraged. Your case could be exactly like your neighbor’s case who had his alimony terminated. However, you could lose your case even though you had the same disability or if you lost your job just like your neighbor did. There are many variables in the family court system, many that I can’t write about. A very illustrative case is Kuron v. Hamilton, 331 N.J. Super. 561 (App. Div. 2000). Here, the Appellate Division held that it would not adopt any bright-line rules, but that it consider any alimony modification applications on a case-by-case basis. At issue in the Kuron case was the question whether an attorney’s incarceration and disbarment was a sufficient change of circumstances to justify a reduction of alimony. Alternatively, the court could rule that the attorney’s incarceration and disbarment was only voluntary conduct for change of circumstances purposes.

The Kuron court ultimately held that a bright line test to analyze any alimony reduction motion. The court further held that it must analyze the totality of the circumstances when it rules on any alimony reduction motion. Thus, the Kuron court refused to use any type of absolutes when it ruled on the Lepis motion. In summary the Kuron court held that a “per se test is inconsistent with this State’s established standards for evaluating petitions for modifcation.” See, Kuron v. Hamilton, 331 N.J. Super. 561, 570 (App. Div. 2000); (Further holding that rejecting a rule that voluntary conduct necessarily precludes a modification of support on the basis of changed circumstances).

2. Could you please cite some cases that support the doctrine that alimony reduction cases are decided on a case-by-case basis?

A. Deegan v. Deegan, 254 N.J. Super. 350 (App. Div 1992). Here, the court held that in determining whether husband’s voluntary early retirement constituted a change in circumstances thus warranting a reduction of his alimony payments, the trial court was required to conduct a full review of the financial circumstances of both parties.

B. Larbig v. Larbig, 384 NJ Super. 21 (App. Div. 2006). Here, the court held that whether an alimony payment should be reduced upon the grounds of a change of circumstances rests within a Family Part judge’s sound discretion. The Larbig court further held that each and every motion to modify an alimony obligation ‘rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.’ Id. at 21

3. How difficult is to obtain a reduction of alimony in the family court?

In this terrible economy more and more divorced men are finding it impossible to keep up with their alimony payments. Unfortunately, many divorced men are simply not aware that they may be able to reduce or even terminate their alimony because of their to their economic circumstances. This is no easy task at all. However, neither was defeating the Germans in World War II. Neither was it for the Red Sox to come back and beat the Yanks in 2004 after being down three games to none. Finally, it was not an easy Task for Frodo Baggins to obtain the ring and then throw it into the volcano in the epic Lord of the Rings adventures. Reducing or even terminating your alimony is a worthwhile goal, and under the right circumstances, and with hard work and some luck it could happen.

If you are someone who is no longer employed, or if you have experienced a loss of income then you could qualify. For example, if your hours at work have been reduced, and if you are racking up massive credit card debt to survive, then you may qualify for a reduction of your alimony payments. Nonetheless, it is important to emphasize that an alimony reduction motion is determined on a case by case basis. Moreover, you are required to demonstrate to the court that your loss of income or inability to find work constitutes a change of circumstances.

The bottom line is you should know your legal rights. Do not wait and do nothing until you are locked by a county sheriff on a bench warrant. The legal standard to reduce alimony is difficult to satisfy. However, alimony reduction motions are granted every day at your local county family court. The biggest mistake that a divorced man could make is to stop paying his alimony payment, and just hope that his problems disappear. Believe me they won’t. In summary, each and every motion to reduce  alimony rests upon its own merits and legal grounds. Moreover, a review of the appellate cases clearly indicate that the trial judges are given wide discretion to “make the call.” See also, Martindell v. Martindell, 21 N.J. 341, 355 (1956); see also Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993)

Other New Jersey Divorce and Family law articles can be found here.  In addition to New-Jersey-Lawyers.com , other Attorneys who practice Divorce Law in New Jersey can also found on NJLawFirms.net

21. How does the SCRA affect my divorce case?

From a New Jersey divorce, legal separation or paternity perspective, the SCRA applies to all proceedings, including post-decree matters, etc. The SCRA does not protect servicemembers in administrative proceedings or criminal cases. The SCRA also covers active duty servicemembers, reservists and members of the national guard.

Many servicemembers erroneously believe that the SCRA provides them with total immunity from being sued. This is another major myth in military law. The SCRA does not provide a servicemember with a blanket immunity against being sued or from being made a participant in a litigation proceeding. The primary remedy under the SCRA is that it halts a lawsuit(s) and a divorce case. In legal terminology the SCRA “stays the proceedings” issued by any tribunal or a court. These stay orders are uniquely useful in a divorce case. They provide a means for suspending the divorce until the servicemember who is a party is available to participate.

22. How does the SCRA enable a servicemember to “stay” a divorce case?

When a servicemember has not made an appearance, the family court’s next step is to decide whether to grant a stay of the divorce case. For a servicemember’s defense, the SCRA states that the court shall stay the proceedings for at least ninety days (upon application of counsel on the court’s own motion) if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant.

Pursuant to 50 U.S. Code App. 202, the court may, on its own motion, and shall, upon application by a servicemember which meets these criteria, stay the divorce proceedings for at least 90 days if the:

1. The applicant is in the military service, or within 90 days after it ended;
2. The applicant has actual notice of the proceeding;
3. The application is in writing, and includes facts stating how military service materially affects ability to appear, and a date when the servicemember may appear; and
4. The application includes a communication from the servicemember’s commander that the military duty prevents appearance, and leave is not available.

The initial 90-day stay is mandatory. Thereafter, the servicemember may apply for a longer stay. The same criteria is used to evaluate any request for a longer stay. The court may deny an additional stay. However, the court is required to appoint a lawyer to represent the servicemember if a request for a longer stay is requested.

It is important to emphasize that simply being stationed overseas, thereby making it more expensive to appear, does not materially affect a servicemember’s ability to appear at court. Many servicemembers are permitted to take a leave from their duties. The family courts are well aware that servicemembers accrue 30 days of leave per year. DOD Directive 1327.5 section 6.25 provides in pertinent part:

When a servicemember requests leave on the basis of need to attend hearings to determine paternity or to determine an obligation to provide child support, leave shall be granted, unless (a) member is serving in or with a unit deployed in a contingency operation or (b) exigencies of military service require a denial of such request. The leave shall be charged as ordinary leave.

A servicemember who invokes this protection must justify the need for a stay, and have his base commander write the request. Please keep in mind that the family law courts in New Jersey which also has several military installations, work with servicemembers by allowing telephonic testimony, or scheduling hearings during periods of authorized leave. The result is that military personnel are protected, but family law proceedings can still continue. Finally, if a request for a stay is denied, the servicemember cannot then invoke the protections of the SCRA to try to set aside the default judgment.

23. How does the SCRA protect servicemembers from default judgments in a divorce case?

The SCRA also offers many protections for a servicemember from the entry of a judgment by default in a divorce case. A divorce judgment entered by default may not be lawfully entered against a servicemember in his or her absence unless the court follows the procedures as set out in the SCRA. As explained earlier, when the servicemember has not made an appearance, 50 U.S.C. App. 521 governs. The court must first determine whether an absent or defaulting part is in the military servicemember. Before the entry of a judgment of divorce or for an order for support, the moving party or the plaintiff must file an affidavit or a certification that sates “whether or not the defendant is in the military serve and showing necessary facts in support of the affidavit.” There are criminal penalties that are provided for filing a knowingly false affidavit or certification of non-military service.

50 U.S. Code App. 201, which applies to any divorce or a family law case provides servicemembers with relief against a default judgment for divorce. A plaintiff seeking a default judgment in a divorce case must first submit an affidavit or a certification stating whether the defendant is or is not in the military, or that the plaintiff does not know whether the defendant is in the military. The plaintiff must also attach a military search from the Defense Manpower Data Center DMDC. The military search is attached to the affidavit or certification of non-military service. The military search can be obtained from the DMDC website. A divorce judgment that is obtained without the affidavit and/or certification of non-military service is voidable if the servicemember later shows that his or her military service prejudiced the presentation of a defense.

24. How can an ex-spouse oppose a stay issued by the SCRA?

It is clear from the above that there are an abundance of protections that are provided to servicemembers from the SCRA. However, family law attorneys will be quick to recognize that these protections, especially the stay of the proceedings, can be an extreme hardship in many cases. Unpaid support and custody and visitation problems all confront military families. Therefore, in many cases it may be necessary for a military spouse to oppose a request for a stay of a divorce case.

Counsel for the military spouse can file a motion to vacate the stay based on the grounds that it is not made in good faith. Most courts hold that a servicemember must exercise due diligence and good faith in trying to arrange to appear at court. When a servicemember demonstrates bad faith in his or her dealing with the court, no stay will be granted.

The lawyer opposing the stay also should absolutely examine whether the servicemember’s presence is necessary. In many family law cases, the issues presented to the court are only by the pleadings and by paperwork, and not by live testimony. In the alternative, when the servicemember’s testimony is necessary, counsel for the civilian spouse can argue that this does not require personal presence. It might be possible to convince the court that technology makes testimony by video-teleconference by use of the Internet almost as good as live testimony. Sometimes the case can proceed on an interim basis with a temporary hearing. There is New Jersey caselaw that suggests that granting a temporary hearing(s) with regard to the determination a child support award, as a general rule does not significantly affect the servicembember’s rights. The reason for this holding is because child support orders are only interlocutory (temporary or interim) orders, and they can be subject to a modification in the future.

25. How does the SCRA impact the collection of a child support award?

A uniquely problematic area involves the initial determination of a child support award and the stays imposed by the SCRA. New Jersey law requires an “expedited process” in child support determinations. This is at odds with the concept of a stay of the proceedings while the servicemember parent is unable to appear in court due to military duties. In most cases, a preliminary determination of child support must be made within sixty days of the filing of the FD case or the complaint to determine child support.

The child support guidelines usually proscribe a formula for child support based on the income of one or both parents. In New Jersey child support cases, the family courts will still conduct a child support hearing even if the servicemember is not available. The family courts only need to have the parties’ income information to calculate a child support award. In most cases, the civilian spouse already has in her possession the couple’s tax returns and her husband’s pay info. In the majority of cases, this evidence is all that is needed by the court to calculate a child support award. Therefore, for routine child support cases the stay protections of the SCRA will not be rigorously applied. Moreover, the family courts will also try to have the servicemember participate in the child support hearing via a phone conference or by video-teleconferencing.

Former Spouse Military Benefits

26. What type of military benefits does a former spouse of a servicemember receive after a divorce?

A former spouse of a servicemember has available to him or her a wealth of military benefits. Upon obtaining a New Jersey judgment of divorce, the former spouse of a servicemember has a right to receive military benefits so long as he or she meets certain enunciated criteria. As the benefits are statutory entitlements, they are automatic and not subject to negotiation or any deviation by a divorce court in New Jersey.

27. What type of military benefits does a spouse receive during a legal separation?

Until a New Jersey divorce court issues a final judgment of divorce, a civilian spouse that separated from a servicemember retains full military privileges. These privileges include possessing an ID card, medical, military exchange, commissary, etc. Even though the servicemember can and he certainly should terminate the civilian spouse’s ability to cash checks on post by going to the PX/BX, he or she cannot confiscate the spouse’s ID card or otherwise suspend the spouse’s military privileges.

A civilian spouse that is separated still retains military medical benefits in New Jersey. If a civilian spouse has a medical condition, then it may be feasible and practical to only seek a legal separation instead of getting a full divorce. A permanent legal separation is called a “Divorce from Bed and Board.” A “Divorce from Bed and Board” is a remnant from the past. This type of proceeding is designed for spouses who do not intend to remarry. The main benefit of a “Divorce from Bed and Board” is that it will permit the civilian spouse to retain medical benefits. The civilian spouse will still be permitted to receive her Tricare benefits if there is only a permanent legal separation. I have recently seen a resurgence of “Divorce from Bed and Board” filings. The price of obtaining health insurance has gotten so cost prohibitive, that divorcing couple’s have to resort to having a permanent legal separation to enable both spouses to have adequate health insurance coverage.

The bottom line is that there is only so much money to go around in a military divorce. A servicemember may be able to save significant dollars in spousal support or alimony if a permanent legal separation is pursued instead of a full divorce. If there is a long marriage, most family courts will order a servicemember to contribute to the costs of the civilian spouse to obtain new health insurance. These additional costs may be overwhelming to a servicemember. Therefore, a “Divorce from Bed and Board” deserves a close look by any military couple that is planning to divorce.

Military housing is generally only authorized to servicemembers residing with their families. A military base will typically give a civilian spouse a reasonable time after separation to vacate on-post housing.

28. When is a former military spouse entitled to full Benefits under the “20/20/20″ rule?

Pursuant to 10 U.S. Code 1072, a former spouse of a servicemember is entitled to all military benefits and installation privileges, including medical, commissary, and military exchanges (PX/BX). A former spouse is also entitled to use such other amenities such as bowling alleys, theaters, etc.

The criteria to receive 20/20/20 benefits are as follows:

1. The ex-spouse must be married to the servicemember at least 20 years;
2. The servicemember must have had at least 20 years of creditable service; and
3. There must be at least a 20-year overlap between the marriage and the military service.

Any Medical benefits are suspended while the former spouse is covered by an employer-sponsored health care plan. Moreover, any medical benefits are terminated if the former spouse’s should remarry.

Commissary, military exchange (BX/PX) and other installation privileges are suspended while the former spouse is remarried. However, these privileges are reinstated upon the remarriage is terminated due to a death or a divorce.

29. When is a former military spouse entitled to full benefits under the “20/20/15″ rule?

An unremarried former spouse is entitled to one year of military medical care only (no commissary, military exchange, etc.) The unmarried spouse can only receive medical benefits if he or she is not covered by an employer-sponsored health care plan. Moreover, the following criteria must also be met;

1. The ex-spouse must be married to the servicemember at least 20 years;
2. The servicemember must have had at least 20 years of creditable service; and
3. There must be at least a 15-year overlap between the marriage and the military service.

30. Can a former military spouse receive COBRA health benefits offer the divorce?

Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Tricare will provide a divorced civilian spouse with 36 months of health insurance. This type of program is called the Continued Health Care Benefit Program. Unfortunately, the COBRA program is very expensive, and it is cost prohibitive for many military families. However, if the civilian spouse has a preexisting medical condition, it could be worthwhile.

A former military spouse has to be very prompt to apply for COBRA. The military spouse must submit a DD Form 2837 Continued Health Care Benefit Program Application within 60 days of the divorce, and mail it in with proof of your eligibility and a check for the first quarter of coverage.

31. Child Support information for recently activated national guard and reserve soldiers.

The NJ Office of Child Support & Paternity Programs (OCSPP) realizes that under Operation Enduring Freedom, many of you may be called to active duty, both at home and abroad. First and foremost, we join those who thank you for your service to our country.OCSPP also realizes that some of you may be involved with our program as either a custodial parent or a noncustodial parent. You may have an order to receive child support, or you may be ordered to pay support for your children.

OCSPP wishes to inform you of our policies that address those of you called to active duty, particularly in the areas of review and modification, income withholding and medical support.

After reading the following, should you have additional questions, please contact:

* The local Child Support office to which your case is assigned;
* The OCSPP Customer Service Unit via telephone at 1-877-NJKIDS1

Review and Modification

A custodial parent or noncustodial parent who has been called to active duty for a period of more than 30 days may request a review and modification due to an income change. The income change is considered a substantial change in circumstances for purposes of review and modification. That means the Child Support Program will complete a review of the order regardless of the age of the order and complete a modification regardless of whether the new amount differs by 20 percent from the existing obligation.

If you request a review of your order and a modification, please include:

* A copy of your latest leave and earning statement; and
* A copy of your orders to appear for active duty.

Send your written request and this documentation to the Child Support unit at the county Board of Social Services in which you have an order. For the address, click on Local Offices in the frame at left.

Medical Support

If you are ordered to provide health care coverage for your child(ren) and have not done so, we will ask the military to enroll the child(ren) in the appropriate health care plan.

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.

11. What is the best tip that I can use to collect child support from my “deadbeat” husband who is also a servicemember?

Whenever possible, use the military command structure to assist you to collect any child support or spousal support. If the lowest unit commander cannot help you or if he or she does not respond, then take your request to the superior of that officer. Document your requests, keep records, and use fax or e-mail transmissions whenever possible to send your requests and communications.

12. My ex-girlfriend has filed a child support case against me. I am now stationed in Iraq. Can I contest the determination of the paternity for the child?

In many child support cases, a preliminary consideration is the determination of the paternity of the child. Any litigation as to the paternity may be barred by a prior judicial determination establishing the servicemember as the father of the child. The most common example is the adjudication of paternity that is present in most divorce judgments. It is usually an essential element necessary to obtain a judgment for divorce. Likewise, it is an essential finding in the divorce judgment. The purpose of this requirement is to bar a subsequent litigation of paternity matters that should have been settled in the divorce case. Accordingly, the court will ordinarily deny any attempt by the former husband to reopen the issue of paternity as to the children shown to be his on the face of the divorce judgment. The servicemember also may be estopped from litigating paternity if he has signed a paternity affidavit or an acknowledgment of paternity.

If a servicemember has never acknowledged paternity in either a divorce case or a prior child support hearing, then he may have a right to a paternity test. In New Jersey most paternity tests are performed by Cell Mark labs. These tests are very simple, and the lab techs take a swab from the servicemember’s mouth. The DNA obtained from this sample is then compared with the DNA obtained from the child’s sample. The paternity results are usually available in 30 days or less. The cost to conduct the paternity test is usually around $250. The servicemember will have to pay Cell Mark directly to conduct the paternity test. If the test results are negative, then the State of New Jersey will reimburse the servicemember for the costs. If the paternity test reveals that the servicemember is the parent, then he is responsible for the costs to conduct the paternity test.

Garnishment of Military Pay

13. Can the military garnish my paycheck for my child support obligations?

In New Jersey divorce, legal separation or paternity cases involving child support or maintenance, the spouse can receive payments through a wage garnishment. A garnishment is authorized for child support and alimony (also called spousal support or separate maintenance). The military pay subject to a garnishment has several exceptions which are BAS, BAH, travel allowances. For many Service members, it means only their base pay is subject to garnishment.

14. What are the garnishment procedures that I must follow to collect from my “deadbeat” servicemember husband?

Federal law (42 U.S.C. 659) authorizes the garnishment of the pay of all members of the military. Moreover, the pensions of retired military members can also be garnished. The procedure for garnishment as follows: First, obtain a court order for garnishment. Second, you must serve the garnishment order to the Garnishment Operations of the DFAS. Once the papers are properly served, then the DFAS will then notify the servicemember and it will suspend the payment of any funds necessary to comply with the garnishment order. The DFAS is then required to serve notice of the garnishment order to the servicemember no later than fifteen calender days after the receipt of the garnishment order.

Division of Military Retirement Benefits

15. Can a military pension be subject to equitable distribution in a divorce case?

Yes. A servicemember’s military pension is often the most valuable asset in a New Jersey divorce. Many spouses often overlook the value of a pension. Since a military pension is also a marital asset, New Jersey can divide it just like any other marital asset. Therefore, it is paramount that each spouse should be knowledgeable as to how New Jersey divorce courts handle the equitable distribution of military pensions, VA Disability, and issues concerning the Survivor Benefit Plan (SBP).

A review of New Jersey caselaw specifically holds that a military pension is subject to equitable distribution. A military pension is divisible. Castiglioni v. Castiglioni, 192 N.J. Super. 594 (1984); Whitfield v. Whitfield, 222 N.J. Super. 36 (App. Div. 1987); (Holding that non-vested military retired pay is marital property); Kruger v. Kruger, 139 N.J. Super. 413 (App. Div. 1976); aff’d, 73 N.J. 464 (1977), (Holding that a post-divorce cola adjustment for a military pension is divisible.)

In a military divorce, almost all of the work done by the lawyers with regard to equitable distribution involves the division of the military pension. The bottom line is that the military does not pay their servicemembers adequately enough to enable them to accumulate any decent savings. However, the military does provide substantial health and retirement benefits to their servicemembers. In a military divorce context, it is very rare to have any vexing issues as to the equitable distribution of marital assets. In most military divorces the most valuable asset is the military pension. Therefore, in a military divorce it is of the utmost important to insure that the civilian spouse receives her fair share of the military pension.

16. What is the biggest myth about dividing military pensions?

First, to dispel the myth, all states, including New Jersey, have the authority to divide a servicemember’s military retirement, regardless of the length of the marriage. In the year of 1982, Congress enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA). This landmark act permits, but does not require, the state courts to divide military retirement upon a divorce or a legal separation or annulment. 10 U.S. Code 1408.

There are no restrictions imposed on a New Jersey divorce court’s authority to divide a military retirement based solely on the the length of marriage. Many people, including many divorce lawyers mistakenly believe that a military pension can only be subject to equitable distribution if the marriage lasted at least 10 years. This is the biggest mistake that most divorce lawyers make when they handle a military divorce case.

What the USFSPA actually states is that the Defense Finance and Accounting Service (DFAS) will pay directly the former spouse’s share of the military pension if there were at least 10 years of marriage. The marriage also must coincide with 10 years of creditable military service. This rule is also commonly known as the 10/10 rule.

Many misinformed lawyers “sell out” their client, and they don’t pursue a fair share of a military pension. The major reason for this error is because many lawyers simply do not understand the concepts of dividing a military pension in a divorce. In New Jersey the family court can still divide a military pension for a couple that has been married less than 10 years. The main distinction is that in a marriage that is less than 10 years, the servicemember has to cut the check to pay his ex-spouse. The military or the DFAS will not pay a portion of a pension directly to the ex-spouse if the marriage was shorter than 10 years.

17. Can a military thrift savings plan (TSP) be subject to equitable distribution in a divorce case?

Yes. The National Defense Authorization Act allows servicemembers to contribute up to 7% of their basic pay to a Thrift Saving Plan (TSP). The Military does not offer any matching funds from the federal government. In summary, a military thrift savings plan is very similar to a private sector 401(k) plan. The individual’s taxes are deferred on the contributions and appreciation until they are disbursed. A military thrift savings plan is treated just like any other retirement asset. The thrift savings plan must be valued and it will be distributed via a Qualified Domestic Relations Order (QDRO).

18. What are the mechanics to effectuate a distribution of a military pension?

New Jersey caselaw has consistently held that military retirements are just like other pension plans, and they are “property.” Therefore, a military pension or retirement has consistently been subject to equitable distribution in a divorce.

A military retirement is a federal entitlement and it is not a qualified pension plan. Therefore, no Qualified Domestic Relations Order is required. The procedure to effectuate a division of a military pension is to simply send to the DFAS a DD Form 2293, Application for Former Spouse Payments from Retired Pay. Moreover, a certified copy of the court order or judgment of divorce that divides the retirement must accompany Form 2293. The order or divorce judgment should contain the following information:

1. An indication that the servicemember’s rights under the Servicemember’s Civil Relief Act were respected,
2. An indication of the New Jersey divorce court’s jurisdiction over the servicemember (either residence, domicile, or consent to jurisdiction, including not contesting jurisdiction),
3. The marriage date, and an indication that the 10/10 rule has been met, and
4. The percentage share (or a dollar amount) awarded to the former spouse.

It is important to be patient when you are dealing with the DFAS. It may take up to 90 days to receive the first payment. The DFAS will send the servicemember notice of the application. Thereafter, the servicemember then has 30 days to contest the payment(s).

19. What are the maximum payments that an ex-spouse can receive from the DFAS?

The maximum portion of a retirement that DFAS will pay to an ex- spouse as part of the equitable distribution is 50% of the servicemember’s disposable retired pay. This does not prevent a divorce court from dividing the military retirement and awarding a former spouse more than half. If a servicemember should be in this most unfortunate situation, then he or she will have to make up the difference between what the DFAS pays directly, and what the divorce court’s has ordered.

In cases where military pay is both awarded to a former spouse through equitable distribution, and subject to garnishment for child support or maintenance, then the maximum that the DFAS will pay to the former spouse directly is 65%. However, if the court order or the judgment of divorce requires payment that is greater then the 65% limit, then the servicemember would have to make up the difference between the amount DFAS pays out and the amount ordered.

Servicemembers Civil Relief Act

20. What is the Soldier’s and Sailors Civil Relief Act?

The most important law that protects the rights of our military men and women is the SSCRA, or the Soldiers’ and Sailors’ Civil Relief Act. Congress initially passed legislation at the start of World War II called the Solders’ Sailors’ Civil Relief Act (SSCRA) to provide protection to these in the armed formed. It was enacted in 1940, and the SSCRA was updated after the Gulf War in 1999 but it was still largely unchanged as of 2003. The Servicemembers Civil Relief Act (SCRA) was written to clarify the language of the SSCRA, and to update the SSCRA to reflect the changes in American life since 1940.

The Act was passed by Congress to enable those serving in the military to devote their entire energy to the defense needs of the nation, and to provide for a temporary suspension of any judicial and administration proceedings and transaction that must adversely affect the civil rights of servicemembers during their military service.

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General Info

1. What are the residency and filing requirements for a servicemember to file for a divorce?

The state of New Jersey will allow a military member or a spouse to file for a divorce where he or she is stationed, even if neither the servicemember nor the spouse is a resident of New Jersey. New Jersey will often reduce or eliminate the residency requirement for military divorces.

A servicemember or a spouse has a choice of the following three states in which to file for a divorce;

1. The state where the spouse resides.
2. The state where the servicemember is stationed.
3. The state where the servicemember claims legal residency. This is where the servicemember’s home state, or where he or she plans to live after discharge or retirement.

In my experience, military divorce cases and child support disputes can become extremely convoluted. In a typical military divorce, the parties are divorced in the county court where the military base is located. Almost invariably, both spouses move back to their home state, or the servicemember is transferred to another base out of state. Consequently, the state where the original divorce case was filed retains jurisdiction over any post-judgment issues. I have had a case wherein New Jersey retained jurisdiction over a military divorce for more than 15 years even though the civilian spouse moved to Michigan, and the servicemember was transferred to California.

The above type of scenario makes it extremely difficult for the civilian spouse to file any type of a post-judgment support motion(s). Accordingly, it is quite common that the servicemember’s child support is never increased or subject to any type of a periodic review. Moreover, it is extremely difficult for the civilian spouse to file any type of post-judgment motion(s) to seek any contribution from the servicemember for college tuition costs for the children. To avoid these problems, it is strongly advisable for the civilian spouse to try to have the jurisdiction of family law case transferred to his or her home state. If no spouse continues to live the state with the original jurisdiction, then it is almost certain that the new state will grant any motion to transfer jurisdiction.

As a side note, I have also noticed that in many military divorces the ex-spouses have extensive legal battles to determine which state has jurisdiction. It is quite common that ex-spouses will engage in an extensive legal battle to determine which state’s child support guidelines should be used. In many military divorces there are three or more states that may have “significant contacts” to the divorce case. The bottom line is that the child support guidelines vary tremendously all throughout the United States. Therefore, in many military divorce cases the civilian ex-wife will try to have jurisdiction declared to be in the state that has the highest child support guidelines. Meanwhile, the servicemember ex-husband will use his efforts to try to have jurisdiction declared to be the state that has the lowest child support guidelines.

2. What are the most common mistakes that a divorce lawyer makes in handling a military divorce?

It is extremely important to obtain the services of an experienced divorce lawyer who also has an extensive background in military divorce law. There are many quirks and intricacies of military divorce law that must be mastered by an attorney. A shrewd military divorce lawyer can provide you with invaluable legal advice that could benefit you for the rest of your life.

There are several mistakes that ordinary lawyers commonly make in military divorces. The most common mistakes are as follows:

1. Not understanding the “10″ rule for dividing military pensions.
2. Not understanding the special protections of the Servicemembers Civil Relief Act.
3. Preparing a Qualified Domestic Relations Order to effectuate the equitable distribution of a military pension.
4. Not understanding all of the different components of military pay.

Military Pay & “Gross Income”

3. How does a family court determine a service member’s gross income to calculate his child support award?

When a service member is getting a divorce, the first stage of the case is to determine the amount of the child support award. The court will need to have the income information from both spouses to determine the child support award. Both spouses will have to give the court their pay stubs, their W-2’s, and their income tax returns. Moreover, in a military divorce the servicemember will have to provide the court their Leave and Earnings Statement.

You can learn a lot from a Leave and Earnings Statement, including the service member’s pay grade, years of service, and gross pay. A service member’s gross monthly pay primarily consists of:

1. Basic Pay, which varies depending upon the service member’s pay grade and years of service.
2. Basic Allowance for Housing (BAH). Service members receive BAH unless they reside in military housing or the barracks. The amount varies, depending upon pay grade, dependent status, and home station zip code.
3. Basic Allowance for Subsistence (BAS).
4. Cost of Living Allowance (COLA), if the service member is stationed overseas.

A court must critically review the Leave and Earnings Statement when it calculates a child support award. It is important to review the LES, since there are many other allowances a service member may be receiving. These allowances may include such items as jump pay, family separation allowance, hostile fire pay, flight pay, hazardous duty incentives, hardship duty location pay, professional pay for medical officers, sea pay, submarine pay, dive pay, clothing allowances, overseas per diems, partial BAH, etc.

4. How does the New Jersey family courts treat military pay and allowances?

For purposes of calculating child support and maintenance, New Jersey divorce courts use a very broad definition of “gross income.” In a nutshell, the New Jersey child support guidelines include every dollar the service member receives on the LES, even though some of the allowances are invisible to the IRS and not taxable.

Moreover, New Jersey family law courts also impute income to a service member who receives lodging or food in lieu of BAH or BAS. The reason for imputing income to a service member is because military housing is considered an “in-kind payment,” much like a company car provided by a private-sector employer. Even though no rational person would claim that a barracks room at Fort Dix or at Maguire Air Force Base was the financial equivalent to proper family housing or the full BAH at the with-dependents rate, New Jersey divorce courts may pretend that they are.

Military Family Support

5. How does the military administer the child support laws on their servicemembers?

Child support problems are not as pronounced in the military as in the civilian world. Under Article 133 of the Uniform Code of Military Justice, it is a criminal offense for an officer to engage in conduct unbecoming of an officer and a gentleman. For enlisted personnel and officers, Article 134 makes it a crime for any member of the armed forces to dishonorably fail to pay a just debt that has become due and payable, provided that the individual’s actions were to the detriment of the armed forced or were such as to bring discredit upon the armed forces.

The military default rate in cases involving support orders is one-half that of the nationwide default rate in similar case. The military success in this area is primarily due to the fact that the military society is much more disciplined than the civilian community. There are rules governing a military members conduct, including requirements to pay just debts or face criminal prosecution. These rules virtually guarantee that servicemembers will comply with child support orders, unless they are willing to fact adverse administrative or criminal actions. This unique combination of the authority that permits the employer (the military services) to take adverse administrative and criminal sanctions against its employees (military members), makes the enforcement of child support orders far less problematic within the military community as compared to the civilian community.

Each branch of the military has their own individual regulations that require its servicemembers to pay support to their family members after any separation. If there is a court order or an agreement in effect then they take priority over any of the military regulations. The military regulations are only stopgap measures, and they focus on the particular circumstances of each case. These circumstances include issues such as “fault,” income levels, and/or number of children.

It can’t be over emphasized that the servicemember or the civilian spouse is almost always better off to file a support action in the local county court, instead of seeking support through the military chain of command. The military is adept at protecting the United States and in fighting terrorism. The family courts are experts at determining a fair child support award and enforcing it.

In the event that a servicemember is a “deadbeat” parent, then the civilian spouse seeking support can request assistance from the servicemember’s commander. If the local commander is of no help, then the local JAG office or Inspector General should be contacted. Unfortunately, in the military family support cannot be garnished unless there is a court order. Moreover, a commander has not authority actually divert a servicemember’s pay to the civilain spouse. However, a servicemember who fails to pay support could be punished under Article 92, UCMJ for violation of a lawful general regulation.

It is very tiresome to have to chase down your spouse each and every week for the payment of the child support. The benefits of having child support garnished can’t be overemphasized enough.

I always advise my military divorce clients to obtain a child support through the family court system instead of going through the military chain of command. A valid court order will subject the servicemember to an immediate wage garnishment. Therefore, if you receive a court order for child support then your child support checks can soon be “rolling in.”

If you are a servicemember, or spouse of a service member, stationed at Fort Earle, McGuire AFB, Fort Dix, Fort Monmouth, contact your legal assistance office for more information. However, if you are thinking of filing for a New Jersey divorce, legal separation or paternity action, you may need an attorney who knows both New Jersey law and military regulations for family support, child support, and maintenance/alimony.

6. What are the military guidelines for child support when there is no child support order?

There are administrative regulations that are adopted by the branches of the military service that state what to do in the absence of a court order or agreement for family support. Each branch of the military service has different rules for the support of the family members. While the Department of Defense (DOD) policy is that servicemembers will not use military service to avoid their family support obligations, each branch of the service implements the DOD policy through it’s owns rules and regulations. There is no set “military allotment” for family support.

7. How does the Army determine child support and spousal support?

Army Regulation 608-99, Family Support, Child Custody and Paternity requires soldiers to pay temporary support depending upon the family situation:

1. Civilian spouse/children not in military housing: BAH-II (aka “BAQ”) at the with-dependents rate.
2. Civilian spouse/children in military housing: Difference between BAH-II at the with-dependents rate and the without-dependents rate.
3. Civilian spouse/children not in military housing and not living together: Pro rata share of BAH-II to each.
4. Military spouse with no children: No support obligation.
5. Military spouse with children split between parties: No support obligation.
6. Military spouse with all children: The difference between BAH-II at the with-dependents rate and the without-dependents rate.

In-kind payments do not generally count toward the support obligation, except in very rare situations. In kind payments include paying for food or for lodging. A battalion/squadron commander may relieve the soldier of the spousal support obligation only in very limited circumstances, such as the civilian spouse having a higher income, being in jail, or committing physical abuse against the soldier, or the soldier having already paid support pursuant to AR 608-99 for 18 months. Finally, infidelity or abandonment does NOT constitute grounds for relief from paying the child support.

8. How does the Air Force determine child support and spousal support?

The Air Force Instruction 36-2906, Personal Financial Responsibility requires all airmen to “provide adequate financial support of a spouse or child or any other relative for which the member receives additional allowances for support. Members will also comply with the financial support provisions of a court order or written support agreement.”

Family support includes not only cash payments, but in-kind payments like buying groceries, paying bills, etc. Unlike the other branches, the Air Force does not attempt to define a specific dollar figure for child support and for spousal support. Instead, the Air Force leaves it up to the parties’ to work out an agreement as to the terms of support. The Air Force also encourages the parties to file a complaint for separate maintenance to determine the terms of family support. If a spouse makes a formal complaint of non-support to a commander, the commander cannot define an adequate level of support. Basically, the Air Force does not want to get involved in the family disputes of their Service members. The Air Force takes a “hands off approach,” and they encourage their airmen to resolve their separations and divorces in the local family courts.

9. How does the Navy determine child support and spousal support?

The Navy regulations provide a guide for family support, expressed as a fraction of the sailor’s “gross pay.” “Gross pay” is defined as base pay plus BAH, if entitled, but excludes all other allowances, such as BAS, hostile fire pay, etc. The Navy nonsupport policy provides that, in the absence of an agreement or an order, a unit commander must use the following as a guide fo the adequacy of support:

1. Spouse only: 1/3
2. Spouse and 1 minor child: 1/2
3. Spouse and 2 or more children: 3/5
4. 1 minor child: 1/6
5. 2 minor children: 1/4
6. 3 minor children: 1/3

A sailor may request a waiver of spousal support based on desertion without cause, physical abuse, or infidelity on the part of his or her spouse. The waiver request should be submitted to the Director, Navy Family Allowance Activity. It must include a complete statement of facts, the recommendation of the servicemember’s commander, and any substantiating evidence.

10. How does the Marine Corps determine child support and spousal support?

The Marine Corps regulations provide a guide for the monthly support standards that the Marines must follow. The standards depend upon the status of the family member. However, a Marine is never obligated to pay more than 1/3 or his/her “gross military pay” (defined as total pay and allowances):

1. Civilian spouse/children in military housing: $200 per supported person.
2. Civilian spouse/children not in military housing: The greater of BAH with-dependents or $200 per supported person.
3. Multiple families: The greater of the pro rata share of BAH with-dependents or $200 per supported person.
4. Military spouse: No support obligation.
5. Military spouse with all children: The greater of BAH with-dependents or $200 per supported person.
6. Military spouse with children split between the parties: the greater of the pro-rata share of BAH with-dependents or $200 per supported person.

A commanding officer may relieve the Marine of the support obligation in certain extenuating cases. These types of cases may occur where the Marine cannot determine “whereabouts and welfare of the child concerned,” the civilian spouse committed documented physical abuse against the Marine, or the family member to whom the support obligation would be owing is in jail.

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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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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.

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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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17. What other considerations must a court consider for modifying alimony if there is cohabitation?

In an alimony cohabitation case, the court also must apply a needs-based test as well. In the case of Gayet v. Gayet, 92 N.J. 149 (1983), the New Jersey Supreme Court adopted the following test for reducing alimony if there is cohabitation;

1. Whether the new companion contributes to the former wife’s support.
2. Whether the new companion resides in the former wife’s home without contributing anything toward the household expenses.

Basically, a court will make an assessment if the former wife still needs the alimony support to survive. Many former husbands become obsessed when their former spouse resides with another man. Many former husbands mistakenly believe that they have hit the jackpot when their former wife moves in with another man. In many cases, they are sorely disappointed when their alimony reduction case is summarily dismissed. The family courts do not want to impoverish women.

In my experience, most judges will only reduce alimony based on cohabitation. Most judges will not permanently terminate alimony based on cohabitation. Relationships are always fluid. It would unreasonable to permanently terminate an alimony award based on a former wife’s new relationship a companion. As we all are aware, people break up all of the time. A court does not want to terminate alimony when there is a real possibility that the former wife could break up with her companion in the foreseeable future.

18. If a spouse retires does this constitute a “change of circumstances” to justify a termination of alimony?

If a husband/payor has a good faith retirement at the age of 65 then this event may constitute a “change of circumstances” to justify a modification of alimony. The court will also consider several other factors such as; the age of the parties; how the pensions and retirement assets were divided during the marriage; whether the retirement was reasonable; and was the retirement motivated to reduce alimony. Our New Jersey courts have held that when a person retires at the age of 65, he is entitled to a plenary hearing to reduce alimony based on a “change of circumstances.”

If a payor spouse retires before the age of 65, then he is subject to a more stringent standard to have alimony terminated. The court will then balance the benefits to the payor spouse against the disadvantage to the payee spouse. Only if the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse will the court view the retirement as a legitimate change of circumstances which would justify a modification of alimony.

Some other factors that a court considers when it rules on a Lepis application to terminate alimony on the grounds of retirement are: the age and health of the party; his or her motives in retiring; his or her ability to pay support; and the ability of the other spouse to provide for herself.

19. I have just retired and my income has been cut in half. Can I now make an application to reduce my alimony obligations?

The retirement of the payor/husband may be sufficient grounds to constitute a change in circumstances to reduce or terminate alimony. However, it must be emphasized that retirement alone is not an automatic grounds to terminate alimony. The key issue is whether the payor/husband is retiring voluntarily or mandatorily, and whether his retirement is being taken at the ordinary retirement age, at an eligible early retirement age, or at some other time for some reason. Some basic questions, once answered, will shed some light on the voluntariness of the retirement.

20. What is the key case that analyzes whether a husband’s retirement constitutes a “change in circumstances?”

The key case that analyzes whether a husband’s retirement constitutes a “change in circumstances” is Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992). In the Deegan case, the husband elected early retirement, and he sought to modify his alimony obligations based on a change of circumstances. The court held that in determining whether to modify alimony based upon retirement as a changed circumstance under Lepis, the pivotal issue was whether the advantage to the retiring spouse substantially outweighed the disadvantage to the recipient spouse. The court concluded that only if the answer was in the affirmative should the retirement be viewed as a legitimate change of circumstances to justify a reduction of alimony.

In any alimony reduction case based on a retirement, the court must assess whether the husband’s retirement was in good faith and otherwise reasonable. The court will also have to assess whether under all of the circumstances it was reasonable for the supporting spouse to retire. The court considers the age, health of the party, the motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement, and the ability of the other spouse to provide for herself.

21. What is the legal test that the court uses to assess whether an early retirement constitutes a “change of circumstances” to reduce alimony?

Another key case is Dilger v. Dilger, 242 N.J. 380 (Ch. Div. 1990). In the Dilger case, a former husband, who had a pre-existing alimony obligation to his former wife of 30 years, voluntarily retired at the age of 62 ½ years. The husband sought to reduce his alimony based on this changed circumstance. The court found that the former spouse’s voluntary retirement at the age of 62½ was not made in good faith, and it was unreasonable under all of the circumstances presented. The court noted that a reasonable retirement age would, in most cases, be 65.

In denying his application the court considered the following criteria:

1. Whether the retirement was made in good faith.
2. Whether, in light of all of the surrounding circumstances, it was reasonable for the supporting former spouse to elect an early retirement.
3. What were the reasonable expectations of the parties at the time of the agreement.
4. Whether the supporting spouse was planning retirement at a particular age.
5. What opportunity was given to the depended spouse to prepare to live on the reduced support.

22. Can my deteriorating health condition constitute sufficient grounds to justify a termination of alimony?

The most common grounds that men use to support a motion to reduce/terminate alimony is a major illness or deteriorating health. The key issue in any alimony case based on illness is the severity of the illness, and it’s impact on the payor/husband’s ability to earn an income.

In most cases, if the payor/husband has filed sufficient moving papers, then most family courts will grant him a Lepis plenary hearing. These hearings can be extremely expensive to litigate because the applicant will have to produce a doctor(s) to verify his medical condition or illness to the court. Please keep in mind that medical records are hearsay. A lawyer can’t introduce the medical records unless they are substantiated by a medical professional. An applicant has two options that he can choose to pursue in a Lepis case based on the grounds of illness or a medical condition. The applicant can retain one doctor to review all of the medical records. Thereafter, this doctor can prepare an expert’s report, and testify at court. Alternatively, the applicant can subpoena their treating physician, and compel their appearance at the Lepis plenary hearing. Unfortunately, the later option has its drawbacks. Doctors like to be paid. Moreover, they also don’t like to spend their days in court. The doctor may become so upset by being subpoenaed that he/she may drop the applicant as a patient.

In summary, in any Lepis case that centers around a “change in circumstances” based on an illness or medical condition, then medical professionals must be brought in to testify. The doctor will have to prepare an expert’s report, and also be willing to testify about his/her findings at the Lepis plenary hearing. In my experience most doctors require a $2,500 to $5,000 retainer to prepare a report of this nature, and to appear at trial. Nonetheless, if the alimony obligation is oppressive, then the high retainer fees to the evaluating physician may well be worth. In my experience, it is almost impossible for an applicant to prevail in an alimony reduction case based on an illness or medical condition, unless a qualified medical expert is brought in to testify at the Lepis hearing.

23. I was declared to be disabled by the Social Security Administration. Does this event constitute a “change of circumstances” to warrant a termination of alimony?

If a person is declared disabled by SSA, then this event constitutes a change of circumstances to justify a reduction or termination of alimony. In the case of Golian v. Golian, 344 N.J. Super. 337 (2001), the court held that a declaration by the Social Security Administration (SSA) that the wife was disabled and eligible to receive social security benefits was prima facie proof of a disability. Moreover, the court held that a declaration of eligibility to receive social security also constituted a change of circumstances to enable the application to receive a Lepis hearing.

24. Can a person insert an anti-modification of alimony clause into the property settlement agreement?

In many cases, the parties will insert a clause in the property settlement agreement that would prevent any modification of alimony even if there is a potential chance of circumstances in the future. This type of clause is known as an Anti-Lepis clause. These types of clause have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.

25. Can alimony be extended?

In most cases no. However, some property settlement agreements provide that a spouse may be entitled to alimony after a certain number of years. A dependent spouse will have to file an application for an increase in alimony. The dependent spouse will have to prove a “change of circumstances” to justify an extension of alimony. The courts analyze these applications on a case by case basis. The court will make this determination based on the payor’s ability to pay, both parties’ respective income’s, and the dependent spouses needs. Additionally, rehabilitative alimony can be extended beyond the expiration date as specified in the property settlement agreement. The standard once again is whether there has been a “change of circumstances.”

26. Can my former spouse bankrupt his alimony obligations?

If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree is not dischargeable. In short, a husband can’t wipe off an alimony obligation in a bankruptcy case.

27. I am a lawyer and my business is going down the tube. What are my chances to prevail if I file a motion to reduce my alimony?

Every case stands on its own merits. A recent case is Donnelly v. Donnelly, A-2389-07. The main point of the Donnelly case is that the court offered a simple warning: Don’t take on a lifestyle you can’t pay for and then try to make your former spouse feel the pinch.

Here, Gregory Donnelly, of Wayne, N.J.’s Donnelly and Warner, had a law pracice that focused on commercial and residential real estate, personal injury and matrimonial work. During his 2003 divorce, his annual income was estimated at $185,000 based that was averaged on a five year basis five years. The parties eventually settled. The PSA required him to pay $1,000 a week in alimony to his wife Elizabeth and $350 a week in child support for their three children.

In 2005, Mr. Donnelly applied to Superior Court Judge before the well respected Michael Diamond in Passaic County for a reduction in payments. He argued that that his income was reduced to $80,000 a year. His income had in fact been falling before the divorce, from $301,705 in 1978 to $130,000 in 2002. He alleged that the reason for the reduction of income was  the decline on increased competition, rising overhead, and a decrease in the firm’s personal injury and real estate practices.

At the motion Mr. Donnelly asserted it was “absolutely impossible” to maintain his practice and to pay other living expenses while paying alimony and support at the established levels. The court that Donnelly’s testimony unpersuasive and it denied the request. The court emphasized that his lifestyle didn’t seem to have suffered. He owned a new Lexus worth $58,000, sold property in Pine Lakes to pay down a $90,000 line of credit, and he bought a home in Wayne with a $600,000 mortgage. Moreover, Mr. Donnelly got remarried and spent $15,000 on his wedding and honeymoon. Judge Diamond opined that even though his business income declined he was still living a upper class lifestyle.

A year later, Mr. Donnelly once again applied for a reduction. In this motion he alleged that saying his income for that year would be only $50,000. He said he had sold his interest in the firm’s building for $175,000 in order to improve his personal finances. Judge Diamond once again denied the motion. The court held that Mr.  Donnelly continued to enjoy an upscale lifestyle and to finance it by borrowing.

The case was then appealed. The Appellate Division affirmed. The court noted that Mr. Donnelly “spent $11,354 per month on his shelter, transportation and personal needs, revealing no effort to modify the lifestyle he enjoyed with his new wife and new child despite the alleged deterioration of his law practice.” Basically, the Appellate Division noted that Mr. Donnelly chose to take on greater financial obligations than would be reasonable if his earnings were steadily dwindling.

In summary, the Donnelly case illustrates how difficult it can be to reduce alimony. If you have a reduction of income, then your CIS and your certification must illustrate that your life style has decreased since the original award of alimony was entered. Here, Mr. Donnelly on established one prong, and that was that his income went down. He failed to prove that he was unable to maintain the same standard of living.

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7. What factors does a court consider to evaluate a motion to reduce alimony?

When a court considers a motion to modify or terminate alimony, the overriding consideration is whether there has been a “change of circumstances.” A court must then compare the parties’ lifestyles at the time of the divorce to their current lifestyles.

In the seminal case of Crews v. Crews, 164 N.J. 11 (2000), the New Jersey Supreme Court held that in all alimony reduction cases, the court must compare the standard of living that the parties enjoyed at the time of the divorce to their current standard of living.

8. If a spouse remarries does this event terminate his obligation to pay alimony?

If the spouse who pays alimony remarries, then this remarriage does not terminate his alimony obligation. If the husband/payor spouse remarries, and if he claims that he can no longer support his former spouse, then this factor alone is not a sufficient change of circumstances to just a decrease in alimony.

9. If a former wife remarries does this event terminate her legal right to receive alimony?

If the spouse who receives alimony remarries, then any permanent alimony award or term alimony will be terminated regardless of the parties’ financial circumstances. The rationale for this is because the supported spouse has entered into a new marital partnership, and the former spouse is not required to financially support this new partnership. If the supported spouse’s new marriage fails, then she can’t later petition the court to reinstate the first husband’s alimony obligation.

10. Can a spouse file a motion for an increase in alimony?

The courts will examine a spouse’s ability to pay alimony and the payee spouse’s need for alimony. Sometimes, a supported spouse will file an application for an increase of alimony. The grounds for the motion is that the supported spouse needs additional income to maintain a decent lifestyle. If the payee spouse is not receiving sufficient alimony to live a decent lifestyle, then a post-judgment increase in the payor’s spouse’s income may justify an increase in alimony. The party seeking to have alimony increased bears the burden of proof to demonstrate a change of circumstance. The courts will also examine the parties’ historical standard of living during the marriage.

11. Can a spouse file a motion for a decrease in alimony?

If a payor’s income decreases then he can file a motion to request that the court decrease or terminate his alimony obligation. The payor spouse must demonstrate that the decrease in income and/or salary was bona fide, in good faith, and not reduced in order to avoid and limit alimony. If a spouse is unemployed or underemployed then the court may impute income to him. The court may also analyze a payor’s/husband’s unearned income and assets to assess the merits of an alimony modification motion(s).

12. Can alimony be terminated if the former wife now cohabitates/lives with another man?

In some cases if a former wife cohabitates/lives with another companion then this may constitute a “change of circumstances” to justify a change of circumstances. If the supported spouse lives with another man, then the court may reduce alimony. However, cohabitation alone is not enough to reduce alimony. The cohabitation must also be coupled with some economic consequences in order to modify alimony.

The courts use the economic contribution test to determine whether an alimony award to a dependent spouse should be reduced. This test looks to see if the cohabitation is similar to a permanent house situation or a marital like relationship. If the dependent spouses’ new companion reduces her financial needs, then alimony may be reduced. Moreover, if the dependent spouse is using the alimony to support her companion, then the payor spouse has very strong grounds to reduce alimony.

The payor spouse has the burden to prove that there has been a prima facie showing of cohabitation. The fact of cohabitation triggers a finding of a change of circumstances. Thereafter, the court will schedule a hearing, and permit the parties to conduct limited discovery. The payee spouse then has the burden to prove to the court that there is no economic consequence from the fact that she is living with another man.

In many property settlement agreements there are some very specific clauses as to alimony termination if the former wife lives with another man. The New Jersey courts have enforced property settlement agreements that provide for a termination of alimony regardless of economic circumstances if the payee spouse lives with another man. The courts however will not uphold a property settlement agreement which attempts to control the former wife’s social activities through the suspension of alimony. If the property settlement agreement places unfair conditions on a former wife that has nothing to do with her financial status, then this agreement will be declared void.

13. If my former wife is now living with another man, will I automatically be able to have my alimony obligations reduced?

No, cohabitation only constitutes a change in circumstances if it is coupled with economic consequences. This means that the spouse must receive a real economic benefit by cohabitating/living with another person. If the dependent former spouse if being fully supported by her companion, then the ex-husband may qualify for a reduction or termination of his alimony obligations.

14. What if my ex-wife moves in with her boyfriend and she never remarries?

In order for cohabitation to be a sufficient ground to reduce/terminate alimony then there must be a permanent relationship. The cohabitation must be of a long-term or permanent nature. The ex-wife and her boyfriend must share living expenses. Staying overnight by either party a few times a month is generally not enough. This is a very touchy subject, because many times ex-wives will intentionally not remarry in order to keep getting support payments, even though they have found a new life long companion.

15. What is the process to make an application to terminate alimony based on the grounds of cohabitation/living together?

An application to reduce or terminate alimony based on the grounds of cohabitation is a two-part process. First, the applicant must prove to the court that there is a “change of circumstances” to justify discovery and a plenary hearing. Second, he must prove that there are grounds to justify a reduction.

It is important to emphasize that alimony will only be reduced, if the applicant can prove that his former wife receives a real economic advantage by living with her companion. The applicant must prove that their former wife receives real support from her new companion. In many cases, it is impossible for an applicant to prove that his former wife receives support from her new companion.

16. What is the main case on alimony reduction based on cohabitation?

The main New Jersey case that the courts use to analyze alimony reduction motions based on cohabitation is Konzelman v. Konzelman, 307 N.J. Super. 150 (App. Div. 1998). In the Konzelman case, a former husband sought to enforce a clause in a divorce decree that provided that his former wife would lose her right to receive permanent alimony if she lived with another man for four continuous months.

In the Konzelman case, the New Jersey Supreme Court held that the family courts must consider the following factors in any Lepis case based on the grounds of cohabitation;

1. The establishment of a common residence;
2. A long-term intimate or romantic involvement;
3. Any Shared assets or common bank accounts;
4. Joint contribution to household expenses; and
5. The recognition of the relationship by the community.

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