New Jersey Lawyers Blog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com part 3 of 6

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

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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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.

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