May Alimony Be “Non-Modifiable” In New Jersey?
Yes, if you agreed to it when you were divorced. This is also known as “anti-Lepis” language regarding alimony in a divorce property settlement agreement. As an experienced divorce and alimony attorney I know the importance of staying on top of recent case law. Hiring an attorney who does not take the time to understand all new family law decisions, could lead to pointless litigation and cost you a substantial amount of money. Amendment L. 2014, c. 42,§ 2(c) to New Jersey Statute 2A:34-23, the alimony statute here in New Jersey, allows the modification or termination of an alimony obligation if the supporting spouse retires. However, the attorneys at my divorce law firm understand that this amendment does not apply to alimony provisions mutually agreed to in a property settlement agreement. In the recent case of Healing v. Healing, the supporting spouse’s attorney failed to understand this restriction and cost his client time and money.
In Healing v. Healing, Ronald Healing appealed an order of the Superior Court of New Jersey, Family Part of Morris County dated December 30, 2014, that enforced a past order that required him to pay permanent alimony payments to his ex-wife, Laura Healing. These alimony payments were mutually agreed to in a property settlement agreement that stated the alimony obligation was not modifiable. This order also denied his cross-motion to decrease his alimony obligation because he had to retire in May 2014 because he became ill. In addition, he also appealed an order dated December 2014 that required him to pay $ 4,505.14 in attorney’s fees because he was found to have acted in bad faith when he refused to comply with the order from October, and tried to litigate the same issue again. The New Jersey Appellate Division reviewed the case and affirmed Judge Maryann L. Nergaard’s order mostly because of the detailed and thorough written statement of reasons she prepared.
Ronald and Laura Healing got married in 1976, and had two children together. They filed for divorce in 2001 and a property settlement agreement was incorporated into their final judgment of divorce. The property settlement agreement required Ronald to pay Laura unmodifiable, permanent alimony in the amount of $ 250 every week. The property settlement agreement further stated that, in spite of and without being prevented by the case law of Lepis v. Lepis, Finckin v Finckin, and Crews v. Crews, the alimony provisions stated in the agreement would not be able to be modified by any party, and the provisions would be irreversible. Lepis v. Lepis, is one of the most paramount cases in New Jersey family law, and illustrates the proper procedure required for modifying support obligations after a final judgment of divorce has been entered. A showing of changed circumstances is required in the modification of both child support and alimony. Then, the court will consider both the finances of both parents, and the best interests of the children and determine a solution that is equitable to both parties.
As a general principle, a modification to an alimony obligation may be warranted in certain changed circumstances. A few examples of valid changed circumstances include: an increase in living cost; increase or decrease in the supporting spouse’s income; illness or disability; the dependent spouse living with another partner; or employment by the dependent spouse. Courts have consistently rejected requests for modification for temporary changes in circumstances, or expected changes that have not occurred. An increase in children’s needs due to maturing has also been held to justify and increase in support as long as the supporting parent is financially able.
Ronald and Laura’s property settlement agreement stipulated that the alimony provision would remain irreversible even if: either Ronald or Laura were not able to find employment, lost their job, temporarily or permanently; either Ronald or Laura fell ill, or became unable to work; or either Ronald or Laura started earning more money; inflation caused the cost of living to go up. The alimony provision in the property settlement agreement also considered: decreases or increases in living expenses; decreases or increases in income; inability to find work; changes to employment; remarriage; significant changes to Ronald or Laura’s mental or physical health; changes to State or Federal income tax laws; the filing of bankruptcy by either Ronald or Laura; or any other life changing event.
In addition, the property settlement agreement also stated that if Ronald failed to make his required alimony payment, and forced Laura to go to court to enforce his alimony obligation, she would not be responsible for paying her attorney’s fees and costs. Instead, Ronald would have to pay her for all reasonable expenses she incurred in compelling him to abide by the property settlement agreement.
When Ronald originally filed his motion to terminate his alimony obligation he already owed Laura $ 3,000 in past due alimony. He had failed to pay alimony since July 2014. By December 26, 2014, the motion judge found that Ronald owed $ 5,250 in past due alimony. Judge Nergaard found that Ronald’s income had increased to $ 108,000 a year in 2013, from $ 51,000 a year in 2001, when he and Laura got divorced, but his alimony obligation had not increased at all. At the time of their divorce, Laura earned about $ 13,520 a year, and by 2013 she was earning about $ 20,000 a year. After retirement, Ronald received $ 45,216 a year. This amount did not include the distribution of any 401(k) or his current wife’s income.
The New Jersey Appellate Division found that instead of filing a motion for reconsideration of the order dated October 6, 2014, Ronald filed a cross-motion to Laura’s motion to enforce. His cross-motion merely reiterated what was stated in his prior motion to modify his alimony obligation. The judge, in her discretion, decided to deny oral argument because cross-motion was repetitive and it did not raise any new issues. According to the 2010 New Jersey Appellate Division case of Palombi v. Palombi, a Family Part court has the discretion and authority to deny oral argument if it would be unproductive or unnecessary.
The New Jersey Supreme Court recognizes that Family Part judges have a “special expertise.” This special expertise relates to child support or alimony actions, custody cases, divorces, domestic violence claims, and adoptions. This is because of the special expertise and jurisdiction of family courts in family matters. Because of this special expertise, The New Jersey Appellate Division gives deference to the fact finding of Family Part courts.
Ronald claimed that he should receive relief according to the new language about retirement in the alimony statute, New Jersey Statute 2A:34-23. The power of the Family Part to modify an alimony order comes from the preamble to N.J.S.A 2A:34-23 which provides that the court can revise and alter alimony orders as circumstances may require. Before the current amendments were enacted, New Jersey courts interpreted this law to require a party who sought modification to prove “changed circumstances,” and demonstrate that changed circumstances have significantly diminished the ability to support himself or herself. Reduced income from a good faith retirement, after the age of sixty-five, is a valid change of circumstances that will trigger a detailed review of both parties’ financial situation to evaluate the impact retirement has on an alimony award.
The September 2014 amendments added a new subsection (j). This subsection listed objective factors a judge must examine and weigh when reviewing a supporting spouses request to modify or terminate alimony when he or she retires. The legislative history attached to the 2014 amendments to the alimony law illustrates the legislatures recognition of the need to uphold past agreements executed, so the new language would not modify alimony provisions already agreed to in property settlement agreements incorporated in final judgments of divorce.
Ronald and Laura clearly agreed that they intended that Ronald’s alimony obligation of $ 250 a week would continue permanently, and loss or employment nor any other reason or circumstance could change that. For that reason, the New Jersey Appellate Division affirmed the Family Part’s order denying modification of alimony.
Please contact my office to learn more about alimony in New Jersey.