Pursuant to the statute, the general rule is that the tern of limited duration alimony cannot be extended without unusual circumstances. A recent Appellate Division decision shed some light on what those circumstances could be.
Jane and Samuel had been married for less than seven years when they got divorced. They had two children, ages 6 and 4 at the time of the divorce. Both parties were attorneys although Jane stopped practicing law after the birth of their first child, within the first year of the marriage. The parties negotiated and entered into an agreement designating Jane with residential custody of the minor children subject to Samuel’s visitation and limited duration alimony in the amount of $500 per week for a period of four (4) years. In addition, Samuel paid $500 per week in child support and child care related expenses to be paid 80% by Samuel, 20% by Jane.
At the time the parties negotiated their agreement, it was assumed that Jane would be able to obtain per diem employment in the law field. Also, at that time, the oldest child was having difficulties with school and may have had ADD. Since the time of the divorce, he has been diagnosed with ADD, Asperger’s, Obsessive Compulsive disorder and Bi-Polar disorder. As a result of these diagnosis, Jane argued that she was unable to obtain significant employment such that was contemplated at the time of the divorce. Jane filed a motion seeking a continuation of her limited duration alimony, an increase in the amount of alimony, the production of financial information or in the alternative an increase in child support, and to establish a fund for their son’s medical care.
The trial court denied Jane’s application in its entirety. She appealed and the Appellate Division reversed and remanded. the matter back to the trial court. The Appellate Court held that an award of limited duration alimony may be modified based either upon changed circumstances or upon the non-occurrence of circumstances that the court found would occur at the time of the award. A court may modify the amount of such an award but shall not modify the length of the terms except in unusual circumstances. N.J.S.A. 2A:34-23(c).
In this case, the Court found that Jane had established a change of circumstance for an increase in the amount of the limited duration alimony as well as an increase in the term based upon unusual circumstances, i.e. the health of the parties’ eldest child.
The court was careful to explain in it’s unpublished opinion that a modification to the time for payment of limited duration alimony as well as the amount would only be based upon an ability to prove changed circumstances or upon the non-occurrence of circumstances that the court found would occur at the time of the award. Thus, the burden is upon the party making the application (i.e. the recipient spouse) that circumstances have changed such that a modification is necessary and just. Here, the child’s condition was far worse than anyone anticipated at the time of the divorce and Jane simply could not work as contemplated when the matter was settled.
To read the entire case, click here.
EDITOR’S NOTE: This case in interesting because there is little law on extending limited duration alimony. What is also interesting is that the Appellate Division applied a similar analysis that is used when someone seeks to either extend rehabilitative alimony or convert it to permanent alimony. Rehabilitative alimony is meant to provide a person with the opportunity to improve their earning ability in order to become self-sufficient, without the need for alimony. Eric S. Solotoff