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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…..click here to finish this article

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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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