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Defending Against Alimony Reduction/Termination Motions

By Theodore Sliwinski, Esquire

I am in a vicious legal battle against my cheap ex-husband. He is trying to have my alimony payments reduced/terminated because I am finally back to work, and I am now earning a decent living. What is the best case that I can cite to the court?

Every ex-husband hates to pay alimony, especially in these hard economic times. Most people in New Jersey can't even go on a decent vacation because they are swamped with outrageous property taxes. To many divorced men the word alimony is more foul and vulgar than using the "F" word! If you are now receiving alimony then you rest assured that sooner or later you will eventually receive a motion from your ex-husband to try to reduce/eliminate your alimony payments. The strongest grounds to reduce alimony are if the payor spouse should become sick or if he has a medical condition. Another strong legal ground is when the payor's business collapses or if he files for bankruptcy. The legal grounds to reduce alimony based on the dependent spouse's improved economic fortunes are not as strong as the other major Lepis grounds. Moreover, it is important to emphasize that each case is decided on its own individual merits.

A frequently cited "change of circumstances" is when a former wife "makes a comeback" and she is now earning an income that is comparable to her ex-husband. The payor spouse can now argue to the court that since the income between the parties is now similar, there is no longer any economic need for any alimony. These types of Lepis cases are often very contentious, and they are also very difficult for a judge to decide. However, in my experience the key issue is who is the judge handling the motion. The current status of New Jersey case law indicates that every Lepis motion based on a change of economic circumstances is decided on a case by case basis. You could file the same alimony reduction motion before ten different judges, and you could receive ten different results. The main point is that almost every individual judge interprets New Jersey alimony law differently.

By far, the most important case to cite when defending an alimony reduction motion based on the improved economic condition of the dependent spouse is Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004). Here, the plaintiff Keith Glass argued that there were changed circumstances, and he filed a motion to terminate his alimony. The changed circumstances did not constitute an inability to pay the alimony. Instead, the ex-husband maintained that the defendant's income was now sufficient for her to maintain her own marital standard of living. After a lengthy and expensive plenary hearing, the motion court concluded that the defendant could maintain a reasonable marital standard of living on her current income. Thus, the wife's alimony was terminated. The motion court further held that it found that "no equities" that weighed in defendant's favor. On appeal the case was ultimately reversed.

The main point of the Glass case was that even if the payor spouse can prove that the dependent spouse can maintain the established marital standard of living on her own income, this factor alone does not automatically require that alimony must be terminated. Instead it is only a significant factor that must be considered with other relevant factors to make any Lepis rulings. Here, on appeal the court noted that there were several equities that weighed in defendant-wife's favor. The property settlement agreement anticipated that the defendant wife would get a job in the future. Moreover, the defendant-wife had a reasonable expectation that she would receive permanent alimony when she planned her financial future. Finally, the defendant also maintained a frugal lifestyle. The court noted that she should not be punished merely because she has lived a conservative life.

In summary, the Appellate Division held that the "change of circumstances" asserted by plaintiff was actually no change at all. The court also opined that the wife's current income earned at ATT simply reflects the reasonable expectation of the parties in the performance of the property settlement agreement. Thus, the Appellate Division concluded that the wife's alimony should not have been terminated.

What were the facts of the seminal Glass v. Glass case?

Here, the plaintiff and defendant were married in 1974. In that year, the parties moved from North Carolina, to Colorado, then finally to California, where the plaintiff had been accepted into law school. The parties resided in California from 1975 to 1983. Initially, the couple had limited financial means. The plaintiff had a start-up law practice, and he worked as an assistant basketball coach at UCLA, he worked at summer camps, and he started a basketball school. As their finances were limited, the parties never had any domestic help, yard help, a cook, or a baby nurse for either child. They infrequently went out, and seldom went to restaurants. Their vacations were limited to visiting his family in New York and her parents in Atlanta. The only other vacation taken was a trip to Tokyo for which UCLA paid. They maintained two cars, neither new, and then only one car after defendant was involved in an accident.

In June of 1983, the parties moved to Middletown, New Jersey. Here, they bought their first house for $110,000. The home was financed by two mortgages to make the purchase. The plaintiff and the defendant ultimately separated in November 1985. On June 1, 1986, the parties entered into a property settlement agreement. The plaintiff was required to pay both child support and alimony.

When the plaintiff moved to New Jersey, he stopped practicing law, because the law school he attended was not accredited. Instead, the plaintiff worked as a sports agent for basketball players. The plaintiff also coached high school basketball. In 1986, according to the plaintiff's income tax return, plaintiff's gross receipts from his sports agency business amounted to $36,600, and his adjusted gross income was $25,220. Notwithstanding this reported income, from January 1986 to May 1986, the plaintiff paid defendant $2,850 per month in alimony and child support.

During the course of the marriage and until 1988, the defendant was unemployed. However, only a few years after the divorce, the defendant started working at ATT. On September 29, 1999, the plaintiff filed a notice of motion to terminate both his alimony and child support. The motion court granted the plaintiff's motion to terminate alimony. The court noted that the "defendant has not demonstrated that she continues to need support to maintain the standard of living during the marriage."

Thereafter, the defendant filed an appeal. On appeal the case was reversed, and the case was remanded back to the motion court for a plenary hearing. A plenary hearing was held. In 2000, the defendant's W-2 wages were $54,390 and subtracting her retirement contribution in the amount of $3,256.98, her taxable wages were $51,133.99 while her total income was $58,802. In 2001, the defendant's reported wages were $60,494, and subtracting her retirement contribution in the amount of $3,628 for that year, defendant's 2001 taxable wages were $56,865.19. Once again the motion court granted the plaintiff's motion to terminate his alimony.

On appeal, the defendant claimed that the motion court committed a reversible error because; a) The motion court erroneously concluded that plaintiff met its burden of establishing changed circumstances; 2) The motion court failed to properly assess the intention of the parties at the time of execution of the PSA; 3) The motion court failed to properly consider equities in the defendant's favor; and 4) The motion court committed a reversible error in determining the defendant's standard of living. In response, the plaintiff asserts that the motion court correctly concluded that defendant's income exceeds her expenses, she continued to live in the same lifestyle as at the time of the marriage, and the judge did not commit any error in terminating alimony.

How did the Appellate Division ultimately decide the Glass appeal?

The Glass court ultimately held that the payor spouse could not terminate his alimony. The court noted that at the time plaintiff and defendant entered into the PSA, there were no findings were made as to the adequacy or sufficiency of the agreement. What was known was that defendant was not employed, was caring for two children, was maintaining a household and clearly could not exist on the limited support provided by the PSA. The court held that the parties fully contemplated and understood that she would be employed in the future and be receiving income.

The Glass court further analyzed that the PSA was an integrated agreement. The PSA not only resolved issues of custody and visitation but financial matters including equitable distribution and spousal and child support. No one element stands alone and can be read without reference or consideration of the others. The parties entered into a voluntary agreement contemplating that defendant would be employed in the future with income to supplement her support.

What are the key points of the Glass case?

The key point in the Glass case is that a motion to modify a PSA agreement is an exception and it is not the rule. Judges and litigants alike contemplate that agreements entered into in good faith containing provisions such as permanent alimony shall be performed in accordance with their terms. The exception is that circumstances will arise that will make the enforcement of the agreement to be inequitable. These circumstances do not include a supported spouse earning a modest sum of money that will allow her to save for her future. Capodanno v. Capodanno, 58 N.J. 113, 120 (1971).

Here, in the Glass case the motion court failed to consider all of the relevant equities here and improperly terminated support. In summary, in any modification case, the burden of proof is on the party seeking change. Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004). Simply going into the family court with a certification stating that you have lost your job due to the recession, and therefore seeking modification, is not enough. A payor spouse's effort to find another job must be both aggressive and active.

What are some other cases that I can use to defend against a motion to reduce my alimony?

  1. Aronson v. Aronson, 245 Super 354 (App. Div. 1991) (Former husband's reduction in income did not warrant reduction in alimony because he could be making more; court should have considered former wife's inheritance in determining whether modification was warranted).
  2. Avery v. Avery, 209 N.J. Super. 61-62 (App. Div. 1986) (finding that "plaintiff's increased earnings in light of her needs do not represent changed circumstances permitting termination of alimony," particularly as "the agreement obviously contemplated a significant increase in plaintiff's earnings in order to maintain the former life style of the family unit").
  3. Dilger v. Dilger, 242 N.J. Super. 380, 385 (Ch. Div. 1990) (stating that to determine whether the defendant's retirement is a changed circumstance warranting modification of alimony, the court must first "examine the intention of the parties as expressed in the agreement itself").
  4. Larbig v. Larbig, 384 N.J. Super. 17 (App. Div. 2006) (Modification denied on application made only 20 months after divorce, suggesting change in circumstances was only temporary; holding that neither compulsory discovery nor a plenary hearing was required until the movant provides sufficient evidence of a material changes circumstance).
  5. Ozolins v. Ozolins, 308 N.J. Super. 243 (App. Div. 1998) (reversing the termination of alimony and finding that the judge erred when, among other things, "the judge did not factor in the principle that the amount of alimony here was set originally by the parties themselves," as such agreements ordinarily include trade-offs between the parties).
  6. Savarese v. Corcoran, 311 N.J. Super. 240 (Ch. Div. 1997) (finding the parties intended the PSA, which included an anti-Lepis clause, to be an integrated agreement, in light of what the parties "actually understood at the time and how they conducted themselves subsequently"), aff'd, 311 N.J. Super. 182 (App. Div. 1998).
  7. Schwartzman v. Schwartzman, 248 N.J. Super. 73 (App. Div. 1991) (Husband's failure to anticipate the close of his business was not exceptional circumstances justifying modification).
  8. Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004) (Refusing to recognize husband's reduced earnings based on career change where perceived advantages to husband were outweighed by disadvantages to his ex-wife).

Theodore Sliwinski, Esquire, dedicates his practice to providing quality and very affordable legal services to the public. He believes that everyone should be able to afford quality legal services. He has twenty-one years of legal experience and has handled hundreds of divorces, bankruptcies, traffic violations, and criminal and civil cases. He is headquartered in central New Jersey. Affordability, accessibility, responsiveness and personal commitment is what every client receives.

Mr. Sliwinski can be contacted by phone at (732) 257-0708 or
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