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