As a continuation to my alimony-themed posts, the particular issue that is the subject of this blog post may come as a surprise to some supporting spouses; namely, the fact that the term and amount of a limited duration alimony obligation can be lengthened in some rare circumstances.
New Jersey Courts do have authority to modify the amount and term limited duration alimony. In the case of modifications of limited duration alimony, the alimony statute, N.J.S.A. 2A:34-23(c), provides as follows:
An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.
Rothfeld v. Rothfeld (App. Div. 2008), while unpublished, is just one example of this portion of the statute in action. In Rothfeld, the parties divorced after an approximately seven (7) year marriage. They had two (2) children: Jonathan, who was born on September 19, 1996; and Martin, who was born on September 15, 1998. Both parties were members of the New Jersey Bar and the husband had an active private practice. The wife had not returned to active practice, however, as a result of her parenting obligations with respect to the children, particularly Jonathan, which had prevented her from doing so.
In reaching their divorce settlement, the parties agreed upon “limited duration alimony” in the amount of $500 per week for four years, effective April 1, 2003. According to the wife, at the time the PSA was negotiated, “it was assumed that [she] would be able to obtain per diem work in the law field.”
At the time the PSA was negotiated and signed, Jonathan was approximately six and a half years old. He was having some difficulties in school; and there was some concern that he might have attention deficit disorder. In the years following the divorce, he was diagnosed with the following disorders: (1) attention-deficit/hyperactivity disorder; (2) obsessive-compulsive disorder; (3) Asperger's disorder (a form of autism); and (4) bipolar disorder. As a consequence of his various disorders, Jonathan took multiple medications and was treated by several mental health professionals on a regular basis. As his disorders developed and progressed, Jonathan's conduct, both at school and at home, became progressively more problematic. In 2007, he was transferred from public school to a non-residential special needs school.
The wife’s increased responsibilities with respect to Jonathan had prevented her from obtaining any significant employment. It appeared from the record that the parties contemplated that the wife would continue to perform parental duties, but would also begin to obtain at least some per diem work as an attorney.
The wife filed a post-judgment motion seeking the following relief: (1) the continuation of alimony until Jonathan graduates from high school; (2) an increase of the alimony to $800 per week; (3) the production of updated financial information; (4) an increase in child support if the court denied relief with respect to the alimony; (5) the establishment of a fund for Jonathan's care after he reaches age eighteen; and (6) counsel fees. The husband opposed the motion, arguing that the wife was bound by the PSA, which they had both agreed was fair and equitable at the time they executed it, and that she had not sufficiently demonstrated an inability to work part-time.
On May 4, 2007, he entered an order denying all of the requested relief, except for the request that the husband supply his current financial information. The wife appealed.
The Appellate Division reversed, finding the wife had made a prima facie case for (1) an increase in the amount of the limited duration alimony based upon “changed circumstances”; and (2) an extension of the length of the term based upon “unusual circumstances,” both pursuant to N.J.S.A. 2A:34-23(c), and ordered a plenary hearing.
Specifically, the Appellate Division believed that the wife made a sufficient prima facie showing that Jonathan's current mental-health condition was not anticipated at the time of the divorce. Although it appeared that, at the time the PSA was being negotiated, there was some manifestation of behavioral problems at school, which were attributed to the possibility of attention-deficit disorder, his later diagnoses of Asperger's disorder and bipolar disorder presented significantly more serious disorders with potentially greater impact on Jonathan's life, as well as the wife’s as his parent of primary residence.
While the Appellate Division further agreed that the wife’s proofs with respect to her efforts to find employment were slim, at best, it was noted that there was sufficient support in the record, primarily in the wife’s certification, to warrant further judicial inquiry into her assertion that her parenting duties related to Jonathan's behavioral issues precluded either the anticipated employment as a per diem workers' compensation attorney or some other form of employment.
On remand, the court rendered a comprehensive written decision that stated that Jonathan's needs were "great" and that the wife's "love and commitment to him were impressive" but concluded that she had nonetheless failed to established that she was entitled to an extension or increase in alimony:
Clearly, there has been a significant change that was not anticipated at the time of the divorce. . . . However, reviewing the evidence and testimony submitted by both parties, this Court concludes that the defendant has failed to demonstrate [that] "unusual circumstances" have impaired her ability to support herself, and does not provide sufficient evidence to support her request. Specifically, she fails to show the impact of child care responsibilities on her earning capacity.
The court therefore denied the wife's request for an increase and extension of alimony. The wife then appealed again (App. Div. 2011), and this time, the appellate division affirmed the decision of the trial court.
Because alimony orders are always subject to modification based upon changed circumstances, it is important, when entering in to an agreement, to know what can happen down the line. This is just one possibility, among many, that both spouses need to consider.
Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild's Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.