As we know, limited duration alimony ("LDA") is alimony for a definite period of time. Unlike rehabilitative alimony where there is a goal in mind to be reached by the end of the rehabilitation period and which can possibly be extended of the goal has not been reached, per the statute, the term of LDA is not supposed to be able to be modified except for "unusual circumstances." Of course, even limited duration alimony is subject to modification based upon "changed circumstances." Of note, however, is that retirement has been recognized as a possible change of circumstances sufficient to seek a modification.
The issue of whether early retirement could be used by an alimony payor in order to terminate his LDA obligation was recently addressed in the case of Hendrickson v. Hendrickson, an unreported (non-precedential) opinion released on November 5, 2012. In that case, the parties agreed to an 8 year term of LDA at the time of the divorce in 2006, in the amount of $265 per week, that actually was reduced to $145 per week to take into account that the wife’s child support obligation because the husband had custody of the children.
The husband had been working at Fort Monmouth for more than 30 years when it closed in 2011. The husband asserted that though he had been offered a position in Aberdeen, Maryland, the net effect of the transfer would have resulted in a reduction of income and increased expenses. Moreover, he was able to retire for health reasons and collect his retirement benefits. As a result of a claimed inability to pay, the husband filed a motion to terminate his LDA obligation.
The trial court denied the request finding that the early retirement was not a change of circumstances. An unsuccessful motion for reconsideration was denied, as well. The Appellate Division affirmed the decision, but for different reasons.
The Appellate Division agreed with the husband that trial judge mistakenly apprehended the impact of retirement on his application. This was a Pyrrhic victory, at best, because they ultimately determined that he was not entitled to relief for different reasons.
Specifically, they held the the parties divorce agreement did not list retirement as a termination event for LDA. That said, they held that the retirement, whether or not an early retirement, was not an "unusual circumstance" sufficient to modify the term of LDA. The court also rejected the husband’s claim that he was at least entitled to a reduction based upon changed circumstances because his motion did not seek same – it only sought a termination.
What are some take aways from this case. First, there seems to have been a lot of litigation and thus legal fees spent by both sides over a reasonably small amount of money that was ending in about 2 years anyway. It seems that at some point, if the cost of litigation exceeded the amount at issue, perhaps settlement should have been considered. Next, perhaps pleading in the alternative in the original motion, i.e. seeking termination or at the very least modification, in the initial application. Finally, when filing these modification applications, you need to provide the necessary evidence with the motion so as to make an initial showing of a change of circumstances so that you get the plenary hearing. If you are going to claim that a move will result in a net reduction of income and/or increase of expenses, provide the proofs with your motion. If you are going to claim medical problems that prevent or limit work, don’t just say it, provide medical proofs. If you want a modification, you have to file a current and your old Case Information Statements. You also have to provide your job search information and/or other evidence of your efforts to remedy the loss of income. Often, you also have to show how you have reduced your own expenses too. When you don’t do any or all of these things, your modification application is often doomed from the start if the judge follows the well settled law.
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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.