Many times, interspousal agreements (herein used generically to encompass agreements at the end of a marriage usually known as "Support Agreements," "Property Settlement Agreements," etc.) will contain clauses that are a bit unusual. Such was the case in the unreported decision of Green v. Green (December 218 2009) of the Appellate Division of the Superior Court of New Jersey. (note that an "unreported" opinion has no precedential value but is valuable as a teaching tool for its reasoning). In that case, the Husband would be soon off to (what was anticipated to be) a three-year stint in jail. The parties recognized that he could not pay alimony during this time, so that agreement provided, in effect, that his half of the house would go to the Wife as a "partial buyout of Wife’s entitlement to alimony for the next three (3) years . . ." Importantly, the agreement went on to provide that upon his release, in any year (up to his expected retirement at age 65) in which he earned more than $75,000, the Wife could make an application to the court for an evaluation of an award of alimony to her.

           The Wife remarried at about one year into the three-year hiatus. Upon his release, the Husband made an application for reimbursement of two-thirds of the amount which she received as a "partial buyout" of his alimony obligation since upon remarriage of an alimony recipient, the support terminates. The trial judge denied the application. On appeal, the Appellate Division affirmed, reasoning that "[t]he monies not only compensated her for the alimony for the three years [Husband] was expected to be imprisoned, but they also compensated her for the limitations placed on her ability to obtain alimony thereafter [if the Husband earned less than $75,000 annually, she could not apply for alimony]." The court sided with the trial judge’s reasoning that "[I]f it was the intention that . . . this was an absolute strict alimony payment, someone could have put a string on it and said, however, if there is remarriage, cohabitation, things of that nature, or it could have been just put into trust to be [paid] monthly to her."

           The lesson to be learned is that courts heavily rely on the wording of an agreement, and are quite reluctant to retroactively place conditions or terms into an agreement upon which the parties did not agree at the time of the making of the agreement where there was an opportunity for them to have considered the point in question.

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