In an interesting unpublished Appellate Division decision dated May 23, 2008 in the matter of Pechinka v. Pechinka, A-6089-06T3, the court affirmed a trial court decision that denied an ex-husband’s motion to terminate his limited duration alimony. 

At the time of the divorce in 2002, the wife was earning $46,000.  The husband earned $116,000 per year.  They stipulated that there marital lifestyle was $7,000 to $7,500 per month for a family of four  "… in an average month on living expenses." 

In 2006, the wife earned almost $91,000 and with her alimony, she had $6,100 per month in net after tax funds.  This amounts to about 81% to 87% of the joint family net income/lifestyle before the divorce. 

 

Notwithstanding, the court denied the application. The way that marital lifestyle was addressed was interesting, as follows:

"Even the plaintiff acknowledges that when the joint marital lifestyle is $7,000 to $7,500 per month, it is difficult to ascertain Schedule A and B expenses for a two-person household in contrast to a four-person household. The [c]ourt finds that the same is true even for Schedule C expenses, as it cannot generally be said that two persons will incur one half of the Schedule C expenses that four people would incur. There is simply no such relation. Therefore, assuming the marital lifestyle was $7,250 (between $7,000 and $7,500), there is simply no easy way to determine how much of that money should be allocated to the defendant’s current household. Housing costs will not simply be one-half of what they were and the same is true of many other costs. The [defendant] specifically states that she would be unable to maintain the marital lifestyle with $4,000 net per month. Income of $108,000 gross per year, i.e. $90,000 of income and $18,000 of alimony payments, results in
approximately $73,000 net income per year, or approximately $6,100 per month of net income. The parties’ marital lifestyle was, of course, also based on net income, not gross income, as it represents actual expenses paid by the parties every month. Considering how difficult it is to determine how a joint marital lifestyle for four persons would translate into the same standard of living for two persons, the [c]ourt finds that the $6,100 of net income is not such a large increase from $4,000 per month, especially considering that the Final Judgment of Divorce was entered in September 2002 and living expenses in the past five years have increased, as to constitute "unusual circumstances" which would permit the [c]ourt to terminate the plaintiff’s alimony obligation. As Justice O’Hern said, "a deal is a deal." "

In holding the husband to the deal, the court seemingly disregards the fact that the alimony probably now puts the wife in a better cash position than the husband. While need and ability to pay are always a factor, it does not seem as though the factor was applied to both parties.

Clearly, if the incomes at the time of the divorce were the same as they were as of the time of the post-judgment motion, it seems unlikely that there would have been any alimony obligation at all, assuming that the husband’s income had not increased substantially.

That said, if the alimony would not have been ordered or would have been much less if the Court was reviewing this at the first instance, then query how it is fair because it comes before the Court on a motion for modification a few short years later. If doubling an income from $46,000 to $91,000 in 4 years is not a change of circumstances, it is hard to imagine what would be a change of circumstances.

For a copy of the case, click here.

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