Posted on November 17, 2009 by Eric S. Solotoff

ALIMONY TERMINATES AT REMARRIAGE, DOESN'T IT?

Alimony terminates at remarriage, doesn't it?  At least that is what we have learned.  In fact, there is even a statute, N.J.S.A. 2A:34-25, that says permanent or limited duration alimony terminates upon death or remarriage of the recipient.  This is not the case for reimbursement or rehabilitative alimony, per the statute, absent an agreement to the contrary or good cause. 

Fast forward to November 17, 2009, the date of the release of the unreported (non-precedential) Appellate Division opinion in the case of Kelly v. Arato.

In this case, the parties were married in 1985 and divorced in 2004.  Their agreement called for $100 per month of alimony and $3100 per month in child support.  The wife remarried 6 months after the divorce and the husband immediately stopped paying alimony.  Four years later, when the husband's attorney wrote to address college for the children, the wife raised the issue of the non-payment of alimony.  After cross motion, the trial judge denied the husband's motion to terminate alimony as well as the wife's motion for payment of alimony arrears.  Both parties appealed.

The problem in the matter appears to be in the drafting of the parties' Property Settlement Agreement (PSA).  Per the PSA, alimony would continue "for the natural lives of the parties,
unless terminated by any one or more of the following" and then lists two events: repudiation or modification of the PSA by the written "mutual consent of the parties"; and defendant's death.

The wife argued that because remarriage is not included as an event that would terminate alimony the parties agreed it would continue. The husband argued that the parties did not have to expressly provide for what the Legislature commands and that the PSA's silence on that point reveals an
intention that the right to termination set forth in N.J.S.A. 2A:34-25 would apply.

The Appellate Division held:

In most instances, we would find little merit in the contention that the complete absence of any mention of remarriage in a PSA would permit a finding that the payor spouse waived the right set forth in N.J.S.A. 2A:34-25 to have alimony cease upon the supported spouse's remarriage. By way of comparison, Ehrenworth dealt with the enforceability of a PSA that stated the husband's alimony obligation would continue to be paid "regardless of whether or not the [w]ife remarries." 187 N.J. Super. at 345. Here, the PSA makes no mention of remarriage, but it does have a provision that may be plausibly read as excluding any other terminating event than those listed.  By the same token, the PSA's silence on the subject of remarriage also renders plausible the contention that defendant waived the rights set forth in N.J.S.A. 2A:34-25. In short, the language of the PSA neither conclusively establishes nor conclusively negates plaintiff's remarriage as an event that would terminate alimony. As a result, the judge was mistaken insofar as she held that, as a matter of law, the PSA required a continuation of alimony in this circumstance. The dispute cannot be resolved by resort to the four corners of the PSA. It requires a consideration of the parties' actual intentions at the time of formation.

As such, the matter was remanded for a hearing. 

There are a few things of interest to me.  If there really was an alimony obligation, why did the wife wait 4 years to say somthing about it. On the other hand, given the fact that the alimony was $1,200 per year and the child support was $37,200 per year - a rather odd support allocation - as well as how quickly the wife remarried, one could surmise that the remarriage was contemplated and the support negoatiated accordingly.

The bottom line is that this seemingly could have been avoided had the PSA been clear about the intention - whatever it is. 

One last comment - 4 years of aimony arrears total $4,800.  This litigation had to cost several times that amount with more litgation to come.  This seems to fail a cost benefit analysis on both sides. 
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Posted on July 30, 2009 by Apple Sulit-Peralejo

The Good, the Bad and the Ugly: Locking in Support Obligations

At the time of divorce proceedings, many of my clients ask if they can “lock” the other party to whatever support amount is rendered. If the person asking is going to be paying support, they are asking because they do not want to have to pay more in the future. If the person asking is going to be receiving the support, they are asking because they intend to rely upon the amount indefinitely. My response in most circumstances is that it can be done but it should only be done with great caution and only done by way of agreement. For example, while a litigant’s intent may be to “lock” the support amount because they are anticipating earning more in the future and do not wish to pay more in the future, once locked and the litigant is faced with unanticipated detrimental financial circumstances, they may be unable to obtain a decrease of their support obligation. In other words, it goes both ways - being bound to a specific number regardless of changed circumstances can be very beneficial in some circumstances and in other circumstances very disastrous.

N.J.S.A. 2A:34-23 recognizes the equitable power of the Courts of the State of New Jersey to modify alimony and support orders at any time. Specifically, N.J.S.A. 2A:34-23 states:

 

Pending any matrimonial action brought in this State or elsewhere, or after judgment of divorce or maintenance, whether obtained in this State or elsewhere, the Court may make such order as to the alimony or maintenance of the parties . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders. . . . Orders so made may be revised and altered by the court from time to time as circumstances may require. 

 

Based upon the mandates of the statute, “alimony and support orders define only the present obligations of the former spouses.” Lepis v. Lepis, 83 N.J. 139, 146 (1980). Alimony and support obligations are always subject to judicial review and modification upon a showing of a change in circumstances. Id.    A type of “‘changed circumstance” that warrants modification of a support order is an increase or decrease in the supporting spouse’s income.” Innes v. Innes, 117 N.J. 496, 504 (1990). However, what happens when the parties agree at the time of the divorce that the support provisions cannot be modified?

 

The Appellate Division decision discussed whether or not a non-modifiable clause (also called an “anti-Lepis” clause) is enforceable in the decision of Morris v. Morris, 263 N.J. Super. 237 (App.Div. 1993). The Morris Court did find that an anti-Lepis clause could be found unenforceable in some circumstances, although the particular anti-Lepis clause in Morriswas upheld. In Morris, the defendant husband sought a reduction in alimony payments despite an anti-Lepis clause in the alimony agreement stating that the agreement was not modifiable for any reason except for the husband's physical disability. The husband based his request for reduction on a claim that the his annual income was $49,000 while his annual alimony payment was $35,000. The wife argued that husband kept all of the assets pursuant to the parties agreement and in exchanged for non-modifiable alimony, she agreed to a support amount of much less than the amount needed to sustain the marital standard of living. In holding that the husband was not entitled to a reduction in alimony payments, the court addressed a conflict between two chancery court decisions. In Smith v. Smith, 261 N.J. Super. 198, 199-200 (Ch. Div. 1992), the court determined that “an ‘anti- Lepis’ clause, which seeks to preclude the exercise of [the] Court's equitable responsibility to review and, if warranted, to modify support obligations in response to changed circumstances, is contrary to the public policy of this State as reflected in its Legislative Acts and its judicial decisions.” In Finckin v. Finckin, 240 N.J. Super. 204, 206 (Ch. Div. 1990), the court concluded that public policy did not prohibit the use of an anti- Lepis clause.
 

In an attempt to reconcile the two decisions, the Morris court stated the following:

 We must give an equivocal answer to the question of whether an anti- Lepis clause is enforceable. It is both yes and no. Smith is correct when it states that the parties cannot bargain away the court's equitable powers. Finckin is also correct when it states that the parties can establish their own standards, and that these standards, where not unwarranted under the circumstances, will be enforced by the court irrespective of the need-based guidelines of Lepis, which are applied when there are no such standards. If circumstances have made the parties' standards unreasonable, they can in extreme cases be modified. In less extreme cases, as here, the payments can be accrued with enforcement conditioned upon the payment of reasonable periodic payments. In short, the court should endeavor to carry out the agreement of the parties on a reasonable basis. (Emphasis supplied.) Morris, 263 N.J. Super. at 245-46.

 

Although the court held that the anti-Lepis clause rendered a determination of the Morris wife’s needs irrelevant since the alimony was not negotiated on the basis of her needs, the following example of an “extraordinary case” was provided in a footnote by the Appellate Division: “[T]he wife's needs might be relevant if, for example, there is little economic need on the part of the wife and the husband's countervailing needs warrant his being permitted to retain a higher percentage of his income. (Examples that come to mind are a sick child from a second marriage, an impending loss of his business, or the like).” Id. at 245 n. 5 (emphasis added). Finally, the court held that “defendant's failure to pay can result in his incarceration only if such failure is willful, given his then-existing means.” Id.

 

Interestingly, there are not to many decisions that deal with an anti-Lepis clause. I surmise this to be the case because very few people would agree to be locked into a number that they are required to pay or entitled to receive regardless any change in circumstances. Of course there are situations in which it makes sense to agree to non-modifiable support; however, all facts should be considered with an attorney and the litigant should be prepared to take a significant risk. If on the other hand, your agreement already contains a non-modifiability or anti-Lepis clause and you have encountered significant changed circumstances, it is imperative that at the least you consult an attorney to determine if your circumstances are such that a Court could find the clause to be unreasonable to warrant a modification.

 

 
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Posted on June 14, 2009 by Sandra C. Fava

COHABITATION TO TERMINATE ALIMONY?

Many times a Property Settlement Agreement or Judgment of Divorce will address the payment of alimony.  An alimony calculation, among other factors, is calculated upon the length of the marriage, the income of the parties, the assets each will receive by way of the divorce, the age and health of the parties, and the age of children, if any, etc.  The standard in New Jersey for a divorcing spouse is the ability to maintain the 'marital standard of living' or as close thereto as may be economically possible.

So, does permanent alimony really mean forever? The answer depends on the language in an Agreement or Judgment of Divorce.  There is case law in New Jersey stating that cohabitation may be a cause to terminate alimony.  However, cohabitation alone is insufficient unless the Agreement states otherwise.  There also needs to be some financial benefit or economic intermingling.

Recently, the Appellate Division issued an unpublished decision in the matter of Adessa v. Adessa, A-2854-07T2, decided May 29, 2009, wherein husband filed a motion seeking to terminate his alimony obligation based upon his former wife's cohabitation or alternatively, requesting a hearing and discovery to determine if there was an economic benefit being received by former wife as a result of her relationship.

The parties married in 1984 and divorced in 2006. Their Agreement required husband to pay permanent alimony, which would be terminable upon either party's death, wife's remarriage or her cohabitation. Husband's motion sought termination based upon cohabitation. Husband alleged cohabitation was proven by the fact that former wife and boyfriend purchased property together in Maine; former wife requested that two months of alimony be sent care of her boyfriend to a PO Box issued to boyfriend in Maine; alleging that former wife told husband to send alimony checks to her condo in Long Branch until it was sold because she was planning to move to Maine; former wife and boyfriend once lived together in the Long Branch condo; and husband received mail from former wife with a PO Box return address for a PO Box issued to boyfriend.

Former wife responded to the application and asserted that she was not cohabiting; that boyfriend lived in a separate residence; there was no economic benefit to her as a result of their relationship; that she was not planning to move to Maine as she had a business in New Jersey; and that she had only purchased a vacation home with boyfriend where they spend weekends or vacations.

The trial judge found that husband had failed to prove cohabitation and denied husband's application. He then appealed. The Appellate Court upheld the lower court's finding.

In order to have been successful on appeal, husband must prove that there is prima facie case of cohabitation before he is entitled to discovery and a plenary hearing. Where an Agreement provides for termination of alimony based upon cohabitation a court does not need to delve into the economics of the dependent spouse. However, the first hurdle is proving that cohabitation does in fact exist. If done, the supporting spouse need only show that the dependent spouse is involved in a marital-type relationship.

Having failed to prove the prerequisite cohabitation, husband's application failed.

As an aside, it can be difficult to prove cohabitation for the purpose of terminating alimony. Individuals who have termination clauses in their Agreements are often aware of those clauses and may be consciously planning their relationship so as to ensure that the alimony is not terminated.
 

EDITOR'S NOTE:  There were several unreported cases where the finding was that with facts like these, the alimony payor was, at least, entitled to a discovery and plenary hearing to determine economic benefit.  For whatever reason, the husband in this case was not so lucky.  ERIC S. SOLOTOFF
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Posted on April 22, 2009 by Apple Sulit-Peralejo

PAINTING A GRIM FINANCIAL PICTURE...IS IT ENOUGH TO OBTAIN A DECREASE OR TERMINATION OF SUPPORT?

New Jersey has upheld the long standing principle that permanent alimony awards are subject to review, modification and possibly termination based upon changed circumstances.  (Lepis v. Lepis, 83 N.J. 139 (1980).  However, it is not enough to paint a bleak picture of a payor's financial circumstances in order to succeed in a downward modification or termination of alimony.  The applicant must also show the Court that the financial difficulties being encountered are not temporary and/or subject to contingent circumstances.  Innes v. Innes, 117 N.J. 496 (1990).

In the recent unreported Appellate Division decision of Norych v. Norych (A-2633-07T1 decided April 16, 2009), while the payor applicant provided the court with very grim descriptions of his personal financial situation and the financial affairs of his law firm, the applicant miserably failed to substantiate his professed circumstances.

In the Norych matter, the parties were divorced in 1992 and at the time of the divorce, the ex-wife received a permanent alimony award of $1,000 per month partly based on ex-husband's law firm income of $70,000 per year and ex-wife's income as a teacher of $25,000 per year.  Ten years later, the alimony increased to $1,100 per month.  In October 2007, ex-husband filed a Motion seeking to terminate his alimony obligation based upon  what he characterized as two devastating and shocking events. 

 

Ex-husband informed the trial court that his law partner who ran the firm's New York office had committed suicide in 2006 and that upon his death, ex-husband learned that the deceased partner had stolen client trust funds, embezzled, wrongfully dissipated business assets and forged ex-husband's name on various contractual obligations. Ex-husband further claimed that a bank had issued a demand letter in the amount of $149,000 and that a former client filed a lawsuit to recover $450,000 that the deceased partner had stolen.  Moreover, ex-husband advised that the law firm's professional liability carrier disclaimed coverage and ex-husband was forced to file a lawsuit against the insurance carrier to assert the firm's rights.  Although the embezzlement seemed tragic, at the time that ex-husband had applied for a termination of alimony, ex-husband failed to provide the Court with the bank's demand letter and failed to provide the Court with court filed documents showing that the former client had sued the law firm to recover $450,000 of stolen money.  Additionally, the court noted that significantly, ex-husband made no claim that any single creditor had successfully obtained a judgment against the law firm as a result of the embezzlement.

The second devastating event claimed by ex-husband to substantiate his request for a termination of alimony related to the head bookkeeper's alleged mishandling of attorney trust funds in ex-husband's Florida office.  Ex-husband claimed that after the suicide of his New York partner, ex-husband undertook an audit of the Florida office's financial records.  Ex-husband claimed that the audit revealed that his bookkeeper had over a period of time transferred trust funds into the firm's operating accounts and that as a result, unbeknown to ex-husband, the firm had been operating at considerable losses having over $4.5 million in contingent liabilities.  Ex-husband indicated that as a result of the bookkeeper's conduct, the Florida office lost most of its clients, that no law firm was willing to hire him as a result of all the controversy surrounding his law firm, that his net taxable income dropped from $300,000 to $132,420 and that ex-husband was forced to forgo a draw from the law firm commencing in October 2006.  Moreover, ex-husband's Florida partner certified to the Court that the Florida office had been operating at a loss or at break-even.  Ex-husband claimed that to keep him afloat, he borrowed money from family and borrowed monies from his life insurance policy and his 401k account.  Notably, ex-husband's then current wife was employed as a legal secretary, paralegal and office administrator by the law firm earning $75,000 per year.  Except ex-husband's statements regarding the financial circumstances of the law firm, ex-husband failed to provide the Court with the audit that allegedly showed the misconduct of the bookkeeper, failed to provide the Court with certified financial statements showing that the law firm was subject to over $4.5 million in contingent liabilities and failed to provide the Court with any documentation showing his liquidation of his life insurance cash surrender value and his 401k account.

Ex-husband also argued that ex-wife no longer needed alimony because her income had increased from $25,000 to $70,000 per year.

The trial court denied ex-husband's application finding there was no changed circumstances to warrant a modification.  The trial court found that although ex-husband was having difficulties his liabilities at that point were still substantially contingent. Moreover, the trial court pointed out that ex-husband had expenses of over $200,000 per year and that ex-husband claimed he was surviving on his current wife's income of $70,000.  Suspiciously, the trial court noted that "it doesn't add up".  

On appeal, the Appellate Division affirmed the trial court's findings and rejected ex-husband's arguments finding that ex-husband did not meet his burden of showing changed circumstances.  The Appellate Division cited Lepis noting that the party seeking a modification has the burden of proof and that a request for modification based upon expected circumstances that have yet to occur should be rejected.  In making its determination, the Appellate Court looked beyond ex-husband's gloomy characterization of the law firm's state of affairs and focused on what ex-husband failed to provide.  The record did not contain any objective evidence supporting his description of a failed law firm.  Moreover, the Court noted that the liabilities resulting from the deceased partner's embezzlement and the bookkeeper's mishandling of accounts had not yet come into existence.  In other words, while there was a potential of judgments, losses and damages to be paid by the law firm, such liabilities were not yet present.  Finally, the Appellate Division found that while ex-husband claimed that he was unable to secure a job at any other law firm, ex-husband made no showing that he even attempted to do so.  The Appellate Court found that when the payor makes no effort to replace alleged lost income, he has failed to meet the burden establishing he has undergone changed circumstances.  Citing Aronson v. Aronson, 245 N.J. Super. 354 (App.Div. 1991.)

Notably, in light of the current state of the economy, I expect that modification requests such as that in Norych will be more prevalent.  I further suspect that among those applications there will be a good handful of litigants who will paint very bleak financial pictures but have no evidence to substantiate their claims.  Those cases are defendable.  For example, I successfully defended against a payor's application to modify alimony and child support based upon the payor's insistence that after he was laid-off by his company he was unable to obtain employment with comparable income.  The payor in my case was a regional executive for a plumbing manufacturer earning a significant amount of money.  After getting laid-off, the payor decided to live off of his severance and when it ran out, he filed an application to modify support. He claimed that he had actively sent his resumes to numerous companies and was not offered a position.  After some investigation, we learned and I advised the Court that every position for which the payor applied were positions that he was either overqualified for or did not have experience which clearly decreased his chances in securing employment.  The Court shot down his application noting that his conscious decision to avoid obtaining employment comparable to that which he had could not meet the standard for changed circumstances warranting review of support.

Undoubtedly, their will also be cases in which there are truly changed circumstances warranting review.  As evident in Norych, it is imperative that the applicant not only paint the picture for the Court but the applicant must also back up the description with objective evidence.  In the Norych case, the outcome for the ex-husband could have been entirely different had he presented certified financial statements, documentation of his liquidation of assets to maintain his expenses, documentation showing his attempts at seeking employment with other law firms, copies of court filings showing that the law firm had been sued, etc. assuming that such documents did in fact exist.  It is not too far fetched to assume that there are modification cases lingering in the courthouses of New Jersey where the litigant should have received a modification but did not due to a poor presentation of evidence.  For example, I have been consulted on a case in which the payor, prior to consulting me,  filed a modification of support after sustaining significant injuries in a horrific automobile accident and was denied review of his support obligations.  When he filed his application, he provided a thorough description of his injuries and indicated that he was unable to work.  The application was denied for failure to show changed circumstances- - no physician report was provided to the Court indicating that he was unable to work and that his injuries were permanent.  Notably, he did present to the Court some of his medical records showing the extensive medical treatment that he had received and was continuing to receive with the incorrect assumption being that the Court would automatically take the next step and find that he was unable to work.  

In short, just describing the severity of a litigant's current financial circumstances will not be enough.  If you are defending against a modification application, look for the objective substantiating proof and if there is none it must be made clear for the Court that no changed circumstances exist.  On the other hand, if you are in desperate need of a modification based upon your current financial circumstances, don't assume that the Court will take your word for it--no matter how obvious you believe your situation to be--better to take the time gathering documentary evidence than rushing to Court on what may (or may not be) obvious change circumstances.
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Posted on January 14, 2009 by Eric S. Solotoff

SCARY APPELLATE DECISION REGARDING PERMANENT ALIMONY/RETIREMENT

I was reading an unreported Appellate Division case released today and gasped when I read the following sentence, " ...Moreover, the permanent alimony figure was negotiated and presumably contemplated defendant's retirement since he was fifty-three years old when he appeared before Judge Piscal on September 19, 2000."  To read the full case, click here.

While the facts in this case may have justified the denial of the former husband's motion to modify alimony, that statement struck a chord.  In this case, the parties were married for 32 years, a long term marriage by any standards.  However, by current standards, we often start talking about long term marriages being 15 years or more and if alimony is appropriate, the discussion is about permanent alimony begins.  Moreover, although there is a well known Appellate Division case authored by Judge (now Supreme Court Justice) Long suggesting that it is better practice to negotiate the issue of retirement, the reality in practice is that it is rare that the party receiving alimony will concede the issue of retirement in the agreement.  Often it is just too speculative.  At best, you may get a recognition that there can be an application for a review upon retirement.

Given that you typically cannot get any concession about retirement and there is no doubt that this was a permanent alimony case, is the above quoted statement a fair or a realistic view?  I don't think so. 

Assume a long term marriage where all assets, including retirement assets are equally divided.  The law is clear that you cannot look to assets divided in equitable distribution for support.  Post-divorce assets can be considered.  If in the 8 or 10 or 12 years after the divorce, after paying alimony and perhaps child support, the payor does not accumulate substantial assets, then what.  What if he bought a new house with his equitable distribution and did contribute the max to his 401k during the post divorce years.  In this economy , the value of the home and the 401k could be down substantially.

More importantly, one would think by this sentence that someone who agrees to permanent alimony can never retire.  This, however, is wrong as a matter of law.  Thus, for a court to determine that a retirement by a person who was age 53 when he agreed to permanent alimony was contemplated in the agreement, is both practically unrealistic and legally incorrect in my opinion. 

That said, as noted above, the denial of the motion to modify under the specific facts in that case made perfect sense.

However, I think it is essential, if possible, to at least get recognition in a Marital Settlement Agreement, that, if nothing else, the issue of retirement was discussed but unresolved to best preserve the issue for another day.

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Posted on September 5, 2008 by Eric S. Solotoff

WHEN PERMANENT ALIMONY MAY BE UNFAIR - PART I

In the September 2008 ABA Journal, there was an article entitled 'Til Death Do Us Pay? As retired boomers head to the golf course, courts look at limits on alimony by Wendy N. Davis.  Discussed in that article is alimony after long marriages when the parties are nearing retirement age. This article got me thinking of a scenario we see in New Jersey frequently enough to make it worthy of discussion. 

Picture a 30+ year marriage where one party was the major breadwinner and the other did not work outside of the home (or if he or she did, there was a substantial disparity in incomes).  The knee jerk reaction is to say that this is a permanent alimony case, without question.

Now picture that there are substantial assets, including substantial retirement assets, that are going to be equally divided.  Does that change the assessment?  Maybe.

Now picture that each party is 62 years old.  Does that change the assessment? Maybe it should.
 

Presumably, the parties had discussed and considered retirement.  Even if they did not discuss it, retirement at 62 or 65 or 67 or some other reasonably anticipated age is not a far fetched concept.

In this case, one would expect that the alimony award entered could possibly equalize the parties' net incomes.  Even if it did not, the parties would likely be reasonably close in net income.  They will also have the same amount of assets.

Will the paying spouse be able to acquire substantially more assets in the few years before retirement? This is unlikely.  As the aforementioned article mentioned, will he be forced into "indentured servitude" to pay alimony so that the other spouse can be retired?  If so, is that fair?

The problem when negotiating settlements in these cases when representing the wage earner is that the other side will usually cling with a death grip on the notion of permanent alimony.  On top of that, in many cases, they will not even agree to language which gives the wage earner a right of review upon retirement - essentially leaving them to their devices to make a motion showing a change of circumstances (as opposed to skipping to step 2 which would be the financial analysis regarding whether the payor can still pay alimony based upon income and assets acquired post-divorce). 

This would seem contrary to the admonition that Judge (now Justice) Long included in a seminal case regarding retirement as it relates to alimony.  Specifically, she urged that it would be prudent to negotiate the retirement issue in a marital settlement agreement.  Despite that admonition, this is often easier said that done.

When it is not in the settlement agreement and the parties divorce at age 62, I can envision a defense to the retirement motion made just a few years later that "we agreed to permanent just a few years ago and retirement as foreseeable."  In short, the notion of permanent alimony will have been used as a shield and a sword. 

In any event, might it make more sense to agree to alimony for a term of years, with either a review at a certain age, unless the wage earner continues to earn as he/she has in the past and then it would continue until retirement.  While I know that few would agree to an automatic termination at retirement, shouldn't discovery and a financial review be automatic at this point.  While people always talk about wanting to avoid or narrow litigation - this would be a way to do it.  That said, it would be unusual to see someone giving up the advantage of the permanent alimony "right" without getting something back in return.  Under these facts, is that fair?

 

 

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