We have blogged several times as to a former spouse’s attempt to obtain an alimony or child support reduction based on the existence of substantial and continuing changed circumstances impacting the spouse’s ability to pay, as set forth by the New Jersey Supreme Court in Lepis v. Lepis, 83 N.J. 139 (1980).  One of the so-called recognized changed circumstances set forth in Lepis is "illness, disability or infirmity" arising after a support Order was first entered. 

An interesting question might arise as to whether a payor spouse claiming an illness or disability as the basis for changed circumstances is really trying to engage in a bad faith form of early, voluntary retirement in order to avoid paying support.  Generally, a retirement when the spouse hits age 65 may justify a support reduction so long as it was made in good faith.  Where the retirement occurs before age 65, however, a Court will look even more closely at the facts to see to what degree the retiring spouse benefits from his retirement compared to the disadvantage suffered by the dependent spouse.

Further, while a temporary change in circumstances, such as through the loss of employment, is generally not enough to obtain a support reduction, what about the reduction of support for a specific, limited period of time?  For instance, New Jersey courts have granted this type of reduction where the payor spouse has been imprisoned or cohabitated with another for a specific period of time. 

How about in a situation where the payor spouse suffers from a health condition that he claims renders him unable to pay support at the level set forth in the Judgment of Divorce or Marital Settlement Agreement?  That was the issue before the Appellate Division in Schvey v. Schvey, where the payor Husband claimed that he was unable to work because of his health following quadruple bypass surgery and other heart-related issues.  He was not, however, receiving disability benefits from social security and had not received disability benefits for several years.  Based on the evidence, the Trial Court, among other things, terminated the Husband’s alimony obligation and reduced child support until the parties’ youngest son graduated from college.  It also ruled that, when the youngest son was emancipated, child support would end and the Husband’s alimony obligation would be reinstated at the level of child support.  Notably, the child support obligation was combined with a tuition payment obligation for a child attending college and living away from home.

Finding no evidence of changed circumstances regarding either the Husband’s situation or the Husband and Wife in combination justifying a suspension of alimony for a period of time "coterminous" (in conjunction with) with his obligation to continue to paying child support, the Appellate Division reversed the decision to suspend alimony.  The Appellate Division specifically found the Husband’s evidence lacking as to his health condition and inability to work, since there was nothing to show that he would recover by the time the youngest child graduated from college or that the Wife would have a greater need for alimony at that time. 

The Appellate Division found that neither party successfully proved the need for an alimony modification, since the Wife’s earnings had significantly increased since a prior post-divorce support modification Order was entered and the Husband failed to prove that he was doing anything other than retiring early.  Importantly, there was a lack of sufficient evidence that the Husband was involuntarily unemployed or that the Wife could maintain the marital standard of living at her current income.

The Appellate Division did, however, find sufficient evidence of changed circumstances to modify child support since, at the time of the prior support modification Order, both children were living with the Wife.  At the time of the present modification hearing, one child had graduated from college and the other was in college and living on campus during the school year.  The Appellate Division, however, again reversed and remanded because the Trial Court failed to provide proper factual or legal findings for its reduced child support/tuition payment figure.

Establishing the existence of substantial and continuing changed circumstances, or opposing such an application, based on the sort of factual scenario detailed above can be a difficult task.  One must be certain to provide detailed evidence to support such a claim for a support reduction.  Here, the Husband could not even establish that a social security determination had been made that he was disabled or that he was receiving disability benefits.  These basic forms of proof contributed to his downfall. 

 

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