#alimony modification

Many divorce settlements center around the alimony provisions.  Alimony provides a spouse with the means to keep their quality-of-life post-divorce. There are multiple factors that determine the amount and length of alimony. However, these agreements are not set in stone. Under New Jersey law, alimony can be modified or even terminated if there are significant circumstances that affect the financial situation of either party.

The case of J.D. v. C.D. emphasizes important elements Judges consider when assessing requests for alimony adjustments. In this case, the payor, C. D., was discharged from his high paying job ($750,000 per annum) and had a hard time trying to find comparable employment. He argued that his financial situation had drastically changed, and sought to terminate his permanent alimony obligation. After reviewing the details, the court agreed, considering the loss of his high paying job and the consequent financial impact, which changed the conditions compared to when the alimony was created.

This brings up the question, when can alimony be modified or terminated? One situation in which alimony can be modified or terminated is when the payor loses his/her job and their new salary is drastically different. This is seen in J.D. v. C.D. where the payor lost his high paying job and alimony was terminated. The payor must demonstrate that he made reasonable efforts to find comparable employment. In J. D. v. C.D., reasonable efforts were made by the payor after he was discharged. He was able to generate an income of around $130,000 by teaching finance courses at colleges and revenues from books he authored. While doing this, he used the help of a re-employment expert to find comparable employment. C.D. made over a thousand phone calls to banks and other financial institutions in search of a job. This helped the court understand his efforts and led to the termination of alimony.

In addition, the wife’s situation changed from a low wage situation of about $30,000 to a nurse position of about $100,000.

In a recent case, Foley v. Foley, the New Jersey Appellate Division applied common sense to a case where the defendant Husband was ordered to pay alimony at trial despite 5 1/2 months of unemployment, but came back 10 months later to request a modification of his alimony obligation. The Appellate Division considered that the trial judge was reasonable in making the initial alimony award, as a 5 1/2 month period of unemployment could still be considered temporary. The aggregate 15+ months of unemployment by the time of his modification motion, however, should have been looked at as one continuous period of unemployment, which may be a sufficient showing of changed circumstances.

C. Megan Oltman, Esq.

Call us with more questions at 609-924-2900, or visit our web site at www.strichlaw.com.

It has long been the case in New Jersey that an ex-spouse paying alimony can have that alimony modified or eliminated if their ex "co-habits" with another in a romantic, "marriage-like" relationship. Slowly the case law has been filling in the picture of what will or won't be considered co-habitation for these purposes. This week in Gould v. Gould the Appellate Division gave significant additional guidance: staying over at a significant other's house one or two nights a week, keeping some personal items there and even receiving some pieces of mail there does not equal cohabitation. The evidence in Gould that the defendant and her significant other "spend considerable time together, as people in romantic relationships often do, is not sufficient to establish a prima facie case that they share a marital-type relationship," the judges said, declining to terminate the defendant's alimony. To prove cohabitation for these purposes, there needs to be proof that the two are actually living together, sharing finances and household chores as married couples do.

C. Megan Oltman, Esq.

Call us with more questions at 609-924-2900, or visit our web site at www.strichlaw.com.

The New Jersey Assembly Judiciary Committee voted unanimously to recommend passage of a bill that would allow a reduction in alimony or child support if the payor demonstrates a reduction in income due to unemployment or disability. While Family Part Judges have already had the power to grant such reductions upon a showing of changed circumstances, they have wide latitude to decide whether the reduction in income is temporary, or if it is voluntary. Judges have varied widely in the amount of attention they give to the current poor economy and its effect on earning power. The proposed added language in the Bill reads:

     "The obligation to pay child support may be modified based upon      changed circumstances, which may include a diminishment of the      obligor’s income due to unemployment, temporary disability or      similar circumstances for a period lasting longer than six months,      unless the court determines that such diminution in income was      deliberately incurred by the obligor in order to evade such support      obligation or that the obligor has failed to make reasonable efforts      to secure alternative employment."

This appears to me to be no more than a codification of existing practice, and it will be interesting to see how much difference a specific mandate like this will make in Family Part decisions. The intention of the sponsor, Representative Sean Kean (R-Monmouth & Ocean), is to ensure that financial issues between divorcing spouses are "fairly resolved and periodically assessed to ensure an undue burden is not placed on a person paying alimony."

C. Megan Oltman

Call us with more questions at 732-438-3880 or visit our web site at www.strichlaw.com.

Did your lawyer tell you to keep all your divorce papers in a safe place so you can find them again easily? Here's one of the reasons for it: If you need to make a motion to modify a support obligation later on, you can't do so without filing both a current case information statement and the original case information statement filed in your divorce action, under NJ Rules of Court Rule 5:5-4(a). This requirement was recently underlined in the case of Palombi v. Palombi where the court held a motion deficient on its face, that sought a modification of financial obligations without providing a current and a prior case information statement. The deficiency was evidentiary, the court said, and could not be cured at oral argument.

C. Megan Oltman, Esq.

Call us with more questions at 732-438-3880 or visit our web site at www.strichlaw.com.