Guide to "Family Law" in New Jersey

Paul G. Kostro, Esq.

 

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Modification of Amount or Duration of Alimony

  1. GORDON v. ROZENWALD


  2. Law Lessons from Calautti v. Calautti (App. Div., Docket No. A-167-04T1, Decided November 9, 2005, not approved for publication):

    One who seeks modification of support must establish a showing of a substantial change in ability to pay support that is not temporary. See Lepis v. Lepis, 83 N.J. 139, 146, 157-59 (1980). The obligor has the burden of persuasion on an application to reduce support. Id. at 157-59.

    While approval for receipt of social security disability benefits is generally sufficient to establish a prima facie case of disability precluding work, Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001), inability to work is not always equivalent to inability to pay support.


  3. Law Lessons from Hurley v. Hurley (App. Div., Docket Nos. A-2779-03T1 and A-3242-03T1, Decided November 17, 2005, not approved for publication):

    Alimony obligations are subject to review and modification based on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). Those changed circumstances may include a decrease in the supporting spouse's income. Id. at 151. Applications for modification of an established alimony obligation are informed by the dependent spouse's needs, that spouse's ability to contribute to his or her own support, as well as the supporting spouse's ability to maintain the dependent spouse at the former marital standard of living. Miller v. Miller, 160 N.J. 408, 420 (1999).

    In reviewing the application for reduced alimony, the court must identify the marital standard of living, which is "critical . . . to any subsequent assessment of changed circumstances when an adjustment to alimony is sought." Crews v. Crews, 164 N.J. 11, 25 (2000). If changed circumstances have been demonstrated, an examination of the supporting spouse's financial condition becomes material. Id. at 28, 30. While a supporting spouse's earnings at the time of the application are not determinative as to marital lifestyle, they are "relevant when determining whether, and the degree to which, the supporting spouse can support the dependent spouse in maintaining a lifestyle reasonably comparable to the standard of living enjoyed by the parties during the marriage." Id. at 27.

    The same factors applied in initially establishing alimony should be considered on a motion for a modification of a support order; namely, the dependent spouse's needs, that spouse's ability to contribute thereto, and the supporting spouse's ability to maintain the dependent spouse at the former standard of living. Miller, supra, 160 N.J. at 420. In establishing alimony, a court may "take into account assets received by either party in the equitable distribution of the marital property." Ibid.

    Whether prior support orders should be enforced, and the extent to which a spouse should be required to pay arrearages, lies within the court's discretion. Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989). Because support obligations do not automatically vest as they become arrears, but are subject to the court's control, such matters are addressed to the sound discretion of the trial court. Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981), superseded by statute, N.J.S.A. 2A:17- 56.23a, as stated in Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).


  4. Law Lessons from Wolfe v. Balfe, (App. Div., Docket No. A-3979-04T5, Decided November 18, 2005, not approved for publication):

    When parties voluntarily enter into a fair property settlement agreement, the agreement should not be disturbed unnecessarily. Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999); Smith v. Smith, 72 N.J. 350, 358 (1977); see Petersen v. Petersen, 85 N.J. 638, 645 (1981). Property settlement agreements may be modified by the court where a party shows changed circumstances, which warrant such modification. Lepis, 83 N.J. at 146; Berkowitz v. Berkowitz, 55 N.J. 564, 569 (1970).


  5. Law Lessons from BATTISTA v. BATTISTA (App. Div., A-1853-04T3, December 15, 2005, not approved for publication):

    "[O]rders pertaining to alimony or other support 'may be revised and altered by the court from time to time as circumstances may require[.]'" Gibbons v. Gibbons, 86 N.J. 515, 525 (1981) (quoting N.J.S.A. 2A:34-23); see also Lepis v. Lepis, 83 N.J. 139, 157 (1980). "The burden of persuasion is on the obligor." Storey v. Storey, 373 N.J. Super. 464, 469 (App. Div. 2004). A party seeking modification "must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself." Lepis, supra, 83 N.J. at 157.

    Factors to consider to determine whether a reduction or termination of alimony is warranted upon the retirement of a party were examined in Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992). Speaking for the court, Judge, now Justice, Long, said:
    Whether circumstances have really changed so as to warrant modification requires a court to study the parties' financial condition at the time of the divorce, as well as at the time of the application. . . . Where the change is involuntary, all that is required is an analysis of the alterations in the parties' financial circumstances. However, where the change is a voluntary one, other considerations come into play.
    . . . .
    We . . . have concluded that considerations enunciated in In re Marriage of Smith, 77 Ill. App. 3d 858, 862-63 . . . (App. Ct. 1979) are a good starting point: Relative factors are the age, health of the party, his motives in retiring, the timing of the retirement, his ability to pay maintenance even after retirement and the ability of the other spouse to provide for himself or herself.
    "[R]easonableness" of the early retirement should be a factor, as should the expectations of the parties and the opportunity of the dependent spouse to prepare to live on the reduced support.
    . . .
    [E]ven in a case in which the retiring spouse has been shown to have acted in good faith and has advanced entirely rational reasons for his or her actions, the trial judge will be required to decide one pivotal issue: whether the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse. Only if that answer is affirmative, should the retirement be viewed as a legitimate change in circumstances warranting modification of a pre-existing support obligation. Thus, where a payor spouse has substantial reasons for retiring (i.e., health concerns) and the effect on the payee spouse is minimal (due, for example, to other available income, qualifying for social security, or new employment) the balance will be struck in favor of the payor. Where, on the other hand, the payor spouse simply wants a new life and the payee spouse will become destitute without support, the payee's interests will prevail. Where the interests are in equipoise, the payor spouse's application will fail because he or she is unable to show that the advantage substantially outweighs the disadvantage to the payee.
    [Id. at 355, 357-58.]


  6. Law Lessons from TZORFAS v. TZORFAS (App. Div., A-2314-04T3, December 15, 2005, not approved for publication): A party moving for a modification of support must meet the burden of demonstrating a prima facie case of changed circumstances. Miller v. Miller, 160 N.J. 408, 420 (1999). That burden is not sustained by mere conclusory or speculative allegations. Instead, the movant must set forth, with clarity and adequate documentation, the contentions upon which the application is based.


  7. Law Lessons from SAMMARTINO v. SAMMARTINO ( App. Div., A-3100-04T1, January 4, 2006, not approved for publication): Courts can "modify alimony and support orders at any time." Lepis v. Lepis, 83 N.J. 139, 145 (1980); N.J.S.A. 2A:34-23. Consequently, "alimony and support orders define only the present obligations of the former spouses." Lepis, supra, 83 N.J. at 146. Thus, alimony and support obligations "are always subject to review and modification on a showing of 'changed circumstances.'" Ibid. (citations omitted). Examples of such "changed circumstances" warranting modification include: Another factor is "whether the change in circumstance is continuing." Id. at 152. Temporary circumstances are an insufficient basis for modification. Innes v. Innes, 117 N.J. 496, 504 (1990) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)) (temporary unemployment not sufficient). "If it were otherwise, a [spouse], by deliberate intent or disinclination to work, might defeat or avoid [their] marital obligation of support." Bonanno, supra, 4 N.J. at 275 (quoting Robins v. Robins, 106 N.J. Eq. 198, 200 (E. & A. 1930)).


  8. Law Lessons from HALLAD v. HALLAD (App. Div., A-2934-04T2, January 19, 2006, not approved for publication):

    The equitable power of the courts to modify alimony orders at any time is specifically recognized by N.J.S.A. 2A:34-23. Both consensual agreements and judicial decrees are subject to the same standard of "changed circumstances" to modify the provisions imposed for alimony. Lepis v. Lepis, 83 N.J. 139, 148 (1980); Gibbons v. Gibbons, 86 N.J. 515, 525 (1981).

    Here, defendant bears the burden of persuasion to show the change in his financial circumstances. Lepis, supra, 83 N.J. at 157. Once it is determined that defendant has presented a prima facie showing of changed circumstances, then the court must examine "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard" of living enjoyed during the marriage. Lepis, supra, 83 N.J. at 152; Crews v. Crews, 164 N.J. 11, 28 (2000).

    In any application brought by a supporting spouse for a downward modification in alimony, the court must consider the parties’ incomes from all sources, earned and unearned. Miller v. Miller, 160 N.J. 408, 421 (1999); Lepis, supra, 83 N.J. at 154; Bonnano v. Bonnano, 4 N.J. 268, 275 (1950). Although the supporting spouse's income earned through employment is central to the modification inquiry, it is not the only measure of the supporting spouse's ability to pay that should be considered by a court. Real property, capital assets, investment portfolio[s], and capacity to earn by "diligent attention to . . . business" are all appropriate factors for a court to consider in the determination of alimony modification. Innes v. Innes, 117 N.J. 496, 503 (1990) (quoting Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). [Miller v. Miller, 160 N.J. 408, 420-421 (1999).]


  9. Law Lessons from SCHWITZER v. SCHWITZER (App. Div., A-22-04T1, January 25, 2006, not approved for publication):

    In determining whether a property settlement agreement is fair and equitable, courts must consider issues such as the adequacy of the agreement at inception, the presumed understanding of the parties at that time, the reasonable expectation of the parties during the life of the agreement, the manner in which the parties acted and relied on the agreement as well as the previously stated principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement or even during periods when modification is at issue.
    [Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.) (citation omitted), certif. denied, 180 N.J. 354 (2004).]


  10. Law Lessons from LARBIG v. LARBIG (App. Div., A-6030-03T3, approved for publication February 2, 2006): Whether an alimony obligation should be modified based upon a claim of changed circumstances rests within a Family Part judge's sound discretion. Innes v. Innes, 117 N.J. 496, 504 (1990); Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff’d as modified, 183 N.J. 290 (2005). Each and every motion to modify an alimony obligation "rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters." Martindell v. Martindell, 21 N.J. 341, 355 (1956); see also Rolnick v. Rolnick, 262 N.J. Super. 343, 359 (App. Div. 1993).


  11. Law Lessons from ADAMS v. ADAMS (App. Div., A-3398-04T1, March 13, 2006, not approved for publication):

    “[O]rders pertaining to alimony or other support ‘may be revised and altered by the court from time to time as circumstances may require . . . .’” Gibbons v. Gibbons, 86 N.J. 515, 525 (1981) (quoting N.J.S.A. 2A:34-23). Alimony obligations are subject to review and modifications based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). "The party moving for modification 'bears the burden of making a prima facie showing of changed circumstances.'" Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div. 2004) (quoting Miller v. Miller, 160 N.J. 408, 420 (1999)). In reviewing an application for reduced alimony, the court must identify the marital standard of living, which is “critical. . . to any subsequent assessment of changed circumstances when an adjustment to alimony is sought.” Crews, 164 N.J. at 25. "The standard of living during the marriage is the way the couple actually lived, whether they resorted to borrowing and parental support, or if they limited themselves to their earned income.” Hughes, 311 N.J. Super. at 34. "[W]here the marital standard has not been established, a judge addressing a modification application must make such determination." Glass, 366 N.J. Super. at 371.

    The supporting spouse has a responsibility "to contribute to the maintenance of the dependent spouse at the standard of living formerly shared." Lepis,  83 N.J. at 152. Applications for modification of an established alimony obligation are informed by "the dependent spouse's needs, that spouse's ability to contribute to the fulfillment of those needs, and the supporting spouse's ability to maintain the dependent spouse at the former standard." Ibid. "[M]odification of [support] based on changed circumstances applies not only to a significant diminution of resources of the supporting spouse . . . but to 'a significant change for the better in the circumstances of the dependent spouse' . . . that may obviate the need for continued support." Glass, 366 N.J. Super. at 371 (quoting Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997)).

    While evidence that the dependent spouse is able to maintain the marital standard of living because of an increase in income is to be considered, such evidence does not itself require termination of alimony, but rather is only a factor that should be considered along with other relevant statutory factors in determining whether alimony should be terminated. Id. at 372; Crews, 164 N.J. at 32-33.

    The judge, in deciding whether there has been a change of circumstances under Lepis and Crews because of plaintiff's increase in income, should consider inflation and the increase in the cost of living factors.

    Adjusting the anticipated income at time of divorce to present day value may, or may not, result in a "significant" increase of earning power to form the basis of a finding of a change of circumstances. Glass, 366 N.J. Super. at 371, 379. Inflation may affect a supported spouse's ability to maintain a lifestyle comparable to the marital standard of living. Crews, 164 N.J. at 32.

    Should the motion judge determine that defendant has established a prima facie case of changed circumstances under Miller, it will be necessary for the judge to determine what the marital standard of living was when the parties were divorced. Glass, 366 N.J. Super. at 371.

    Should the judge determine that there has been a change of circumstances and conclude that plaintiff is able to maintain her former standard of living with a reduced amount of support from defendant, or with no support at all, the judge may modify or terminate permanent alimony. What the motion judge may not do, however, is convert permanent alimony to Limited Duration Alimony. LDA is only available to marriages of short duration where permanent alimony is not appropriate, but where some economic assistance is just. Cox v. Cox, 335 N.J. Super. 465, 476 (App. Div. 2000).


  12. Law Lessons from IBRAHIM v. IBRAHIM (App. Div., A-3710-04T3, April 17, 2006, not approved for publication): N.J.S.A. 2A:34-23 provides statutory authority to modify an award of permanent alimony if such modification is warranted by a change in circumstances. See also Lepis v. Lepis, 83 N.J. 139, 145 (1980). When existing employment has been involuntarily terminated, "whether a spouse may voluntarily retire will depend on the individual circumstances of the particular case." Deegan v. Deegan, 254 N.J. Super. 350, 352 (App. Div. 1992).


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