For An Increase Of Alimony Because Of A Disability What Does My Lawyer Need To Prove?

For An Increase Of Alimony Because Of A Disability What Does My Lawyer Need To Prove?

Under New Jersey alimony law your attorney must demonstrate to a judge of the Family Part, Superior Court of New Jersey, that your disability creates an inability to obtain a job that is similar to what you had done historically in their career. Your lawyer must provide evidence from your treating doctors in order to prove that under New Jersey divorce law, you simply no longer have the ability to pay the alimony that you agreed (or were court ordered). The lawyers at our East Brunswick, New Jersey law firm embrace a detailed narrative report from your treating physician containing not only your complete diagnosis but your prognosis as well. This way your attorney has the evidence to argue your inability to regain similar employment in the future and therefore a reduction or termination of alimony is warranted.

In R.S. v. T.B., the parties were married in 1983 and had two children born of the marriage. Throughout the marriage, T.B. worked various jobs, including in real estate, as a bank teller, a hairdresser, at Jenny Craig, and an administrative assistant. R.S. worked as a restauranteur and a chef. He also took part in various business ventures. During the parties' marriage, R.S. and T.B. lived a lavish lifestyle. The parties had combined monthly expenses totaling $32,406.99. T.B.'s own, personal monthly expenses were $12,512.

The parties entered into a dual judgment of divorce in March 2005. The dual judgment of divorce included a property settlement agreement, which discussed the division of the parties' assets as well as alimony and child support. At the time of the parties' divorce, R.S. was set to receive approximately $909,000 as a buyout of his interest in his business ventures. R.S. reported his income as $580,000 in 2003. In the parties' property settlement agreement, the parties agreed that R.S. would pay T.B. $3,000 per month in permanent alimony, meaning until T.B. remarried or R.S. retired. Additionally, R.S. agreed to pay college expenses for both children and also agreed to pay $1,600 per month in child support for the parties' son and $700 per month in child support for the parties' daughter. T.B. agreed to pay for her own expenses, which included day-to-day expenses, car and clothing expenses, household expenses, and medical expenses. The parties also agreed to be responsible for their own medical insurance and to waive any right to the other's bank accounts. Also, T.B. was to receive half of the proceeds of the sale of the parties' marital home, which totaled approximately $55,500 after debts were settled. Lastly, T.B. was to receive the parties' timeshare in Villa Roma, New York. In total, T.B. received about $416,000 in cash through the parties' division of assets.

After the parties divorced, R.S. achieved great success. R.S. has made appearances on various television shows as Executive Chef of the TAO Group. T.B., on the other hand, was involved in a serious car accident, after the parties divorced, which resulted in the need for several surgeries and many disabilities. Due to her medical conditions, T.B. received permanent medical disability, totaling about $900 per month. T.B. filed a motion with the Superior Court of New Jersey Family Part seeking to increase her alimony reward based on a change in circumstances. R.S. filed a cross-motion with the court requesting that the court deny T.B.'s motion and grant R.S. attorney's fees. T.B. argued that she, unlike R.S., had not been able to return to the marital standard of living that the parties shared while married. T.B. stated that R.S. achieved success and has been able to purchase luxurious cars and live a lavish lifestyle. The court denied both parties' motions in August 2015 without hearing oral argument. The court found that T.B. did not demonstrate or provide proof that her medical condition diminished her ability to secure employment; therefore, the court found that T.B. did not demonstrate a substantial change in circumstances.

T.B. filed a motion with the court for reconsideration in September 2015. R.S. filed a cross-motion, again asking for attorney's fees and for the court to deny T.B.'s motion. The court heard oral arguments in August 2016. After hearing oral arguments, the court reversed its prior decision. The court ultimately denied T.B.'s request for an increase in alimony after granting partial reconsideration on January 5, 2017. The court also denied R.S.'s cross-motion for attorney's fees.

On appeal, T.B. argued that the court was wrong to deny her request for an increase in alimony, and that discovery should have been allowed because a change in circumstances existed. The New Jersey Appellate Division stated that its review of the trial court's decision is limited and that it must give deference to the trial court's decision because of the trial court's expertise in family matters. The Appellate Division further stated that it would only reverse the decision of the trial court if the court's decision were a clear mistake or an injustice. Additionally, the Appellate Division stated that it has the authority to hear and decide alimony and support orders, which are subject to change whenever a change in circumstances has been demonstrated, even if the parties have an agreement regarding alimony. The Appellate Division stated that parties could waive modification of alimony in an agreement, such as a property settlement agreement, by including an anti-Lesis clause. The court would uphold such a clause if certain conditions are met and both parties enter into the agreement with full knowledge of the circumstances and foreseeable circumstances.

The Appellate Division stated that R.S. acknowledged that there was no anti-Lesis clause in the parties' property settlement agreement and that the trial court judge did not read a clause into the agreement. The court explained that without a clause included in the agreement, the Lepis case allows fair and equitable modification of alimony upon a showing of changed circumstances that demonstrate that the person seeking modification is no longer able to support him or herself. The Appellate Division explained that supporting oneself is understood as the ability to sustain the marital standard of living, which is the way the parties lived during the marriage based on their income. The Appellate Division stated that the parties' property settlement agreement did not determine the marital standard of living and the trial court judge did not make a determination on the issue. The Appellate Division stated that the parties' property settlement agreement was entered into voluntarily and under the advice of the parties' attorneys. The court stated that the trial court judge was wrong to not resolve the issue of marital standard of living.

The Appellate Division further explained that modification would not be necessarily warranted if the party seeking modification was given a large cash payment at the time of the divorce. The Appellate Division found that, absent evidence to the contrary, it could be understood that the large cash payment was meant to cover the cost of living and all future modifications, as in this case. Ultimately, the Appellate Division reversed the decision of the trial court and sent the case back to the trial court to decide the issue of the marital standard of living.

Please contact our law firm if you or a loved one faces an alimony situation here in New Jersey.

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