Must I Prove A “Change In Circumstances” To Reduce or End Alimony?
Yes, show a sufficient material change in circumstances that warrants a termination or reduction of the alimony obligation must be proven to a judge of a New Jersey Divorce Court. During my many years as a practicing divorce attorney here in New Jersey, the lawyers at our law firm how filed countless applications to reduce or terminate alimony on behalf of our clients (as well as defending them). The following analysis of this aspect of divorce and alimony law illuminates how a judge of the Family Part analyzes these types of cases.
In Brown v. Brown, ex-husband Thomas S. Brown appealed, for the third time, an order of the Family Part that denied a motion to terminate his alimony obligation. The New Jersey Appellate Division agreed with the motion judge, once again, that Thomas failed to Thomas and Thelma Brown married in 1992 when Thomas was fifty-three and Thelma was forty-six. The couple had no children together and eventually separated. In February 2003 they entered into a consent order, which divided some of the marital property, and provided that Thomas would pay Thelma $ 1,000 a month in alimony. After that Thomas and Thelma entered into a superseding agreement in which Thomas’s alimony obligation was raised to $ 1,750 a month. This agreement was incorporated into their final judgment of divorce dated March 15, 2006. The increase in alimony took into account that that both Thomas and Thelma were disabled. Thomas was receiving both veterans’ disability benefits and Social Security benefits. Thelma also received social security benefits.
Thomas filed numerous motions in the Family Part court to either terminate or modify his alimony obligation. These orders were denied on May 25, 2007, September 21, 2007, and April 11, 2008. He filed an appeal from the 2006 divorce judgment in 2008, and also filed an appeal to the April 11, 2008 denial of the modification of alimony motion. The New Jersey Appellate Division dismissed the appeal of the divorce judgment right of the bat because it was filed too late, and affirmed the Family Part order that denied modification, because Thomas failed to demonstrate the change in circumstances required by the paramount 1980 New Jersey Supreme Court case of Lepis v. Lepis.
Thomas fared slightly better in his July 10, 2009 motion to terminate or reduce his alimony obligation. The Family Part reduced his monthly alimony obligation from $ 1,750 to $ 1,250. In the order, the judge explained the reduction was due to the fact that Thelma, at that point in time, was receiving both Medicare health coverage, and Social Security disability payments. For that reason, the court found that Thomas no longer needed to pay her private health insurance costs.
Still, Thomas was not satisfied with the relief granted to him. He appealed the July 10, 2009 order, and argued that the reduction should have been for a greater amount, and that some specific forms of income he received should not have been a part of the court’s evaluation. The New Jersey Appellate Division reviewed the second appeal in May 2010, and partially affirmed the Family Parts order, and remanded the remaining issues back. The appellate panel rejected Thomas’s claim that his veteran’s benefits and Social Security benefits should not have been included in his income when the Family Part evaluated his alimony obligation. Nevertheless, the New Jersey Appellate Division found that the issue should be remanded and heard again, because the Family Part judge did not fully consider all of the statutory criteria in concluding if the alimony obligation should be modified.
Due to the remand, on July 21, 2010, the Family part issued yet another order. This time the judge refused to reduce Thomas’s alimony obligation any further because the judge found that the earlier reduction to $ 1,250 from $ 1,750 a month, appropriately reflected the changed circumstances of Thelma’s increased Social Security Benefits, and the fact that she did not need private health insurance any longer, because she qualified for Medicare. According to the Family Part judge, the monthly amount of $ 1,250 allowed both Thomas and Thelma to live at a comparable standard established during the marriage. The judge further stated that Thomas’s requests to terminate the alimony obligation, and not consider his veteran’s and Social Security benefits as income were not persuasive as they had both been litigated before.
Thomas filed yet another motion to terminate or reduce his alimony in 2011, and once more claimed a substantial change in circumstances. The Family Part denied that motion on June 10, 2011, but instructed Thelma to apply for additional Social Security benefits to supplement her income. The court stated that there was in fact no substantial change to Thomas’s income or living expenses to warrant a termination or reduction of his alimony obligation. Not one to accept defeat, Thomas filed additional motions to terminate or reduce his alimony obligations in 2012 and 2013 which were denied by orders dated October 19, 2012, and January 11, 2013.
The motion at issue in the current appeal began in November 2014. Thomas had filed, you guessed it, yet another motion to reduce or terminate his alimony obligation. He claimed that substantial changes had happened since his last motion in 2011. Thomas argued that his cost of living had increased significantly, and his disability and pension payments could not suffice to cover them. According to Thomas he could no longer pay his living expenses on his income, and that is why he accumulated alimony arrears. Arrears are basically missed payments or partial payments of the alimony obligation. He further argued that the statutory amendments to the alimony statute enacted by the New Jersey Legislature in 2014 covering retirement, warranted a reconsideration of his alimony level. Thelma opposed the motion and cross moved the court to compel Thomas to pay the $ 36,000 of alimony arrearages he had accumulated.
After oral argument, Thomas’s motion was denied by Judge James R. Swift, and Thelma’s cross-motion for enforcement was granted. Judge Swift explained that Thomas failed to factually prove any substantial change in circumstances since his last motion. Furthermore, the judge stated that the new 2014 amendments to the alimony statute did not retroactively apply to him. Moreover, the judge noted that Thomas had filed this motion with “unclean hands,” because he had not paid the full amount of alimony required since February 2011.
Thomas appealed and argued that Judge Swift committed error by not applying the 2014 statutory amendments retroactively, and by not finding changed circumstances. The New Jersey Appellate Division started its opinion by stating they defer to the factual findings of a trial judge’s order as long as they are “supported by adequate, substantial, credible evidence.” An appellate court will only reverse when it is clear that a mistake must have been made because the trial court’s factual findings are so clearly supported by or inconsistent with credible evidence that they offend justice.
According to subsection (j)(1) of New Jersey Statute 2A:34-23, there is a rebuttable presumption that an alimony obligation terminates when the spouse paying alimony reaches full retirement age. While Thomas relied on this subsection, the 2016 New Jersey Appellate Division case of Landers v. Landers, held that this new subsection does not apply retroactively to alimony obligations issued before the effective date of September 10, 2014. The New Jersey Appellate Division explained that the proper provision in this case was actually subsection (j)(3).
Subsection (j)(3) provides that for motions to terminate or modify alimony based on retirement age, where the obligation was entered into before the effective date, the court should consider the ability of the supported spouse to have saved for retirement as well as the following factors: the age and health of the parties; the paying spouse’s field of employment; the age the paying spouse becomes eligible for retirement; the paying spouse’s motives in retiring; the parties reasonable expectations about retirement during the marriage, and at the time of divorce; the paying spouse’s ability to maintain support payments after retirement; the level of the spouse receiving alimony’s financial independence, and impact of the retirement on that spouse; and any other factors the court may deem relevant. In consideration of all these factors, the New Jersey Appellate Division found that the Family Part judge did not commit error in denying termination or reduction of the alimony obligation. Furthermore, Judge Swift correctly recognized that both parties had already retired at the time of their divorce, so retirement was not a change of circumstance, and so the order of the Family Part was affirmed.
Please connect with my law firm if you are dealing with an alimony issue.