Many marital settlement agreements provide that a payee spouse shall receive what is legally classified as “limited duration alimony” from the other spouse. While not “permanent”, alimony of a limited duration is designed for a situation where the payee spouse contributed to a generally short-term marriage where the marriage itself displayed indicia of a marital partnership, and the payee spouse has skills and education enabling him or her to return to the workforce. LDA is oftentimes distinguished from other forms of alimony known as “reimbursement alimony” and “rehabilitative alimony,” which are more tailored to facilitating the payee spouse’s ability to earn or to make that spouse whole for sacrifices made during the marriage.
The question then becomes, for the purpose of this blog entry, can LDA be extended, especially where the term was agreed to in a settlement agreement. N.J.S.A. 2A:34-23(c) allows for modification of the amount of LDA, but it also prohibits modification of the term of payment except in the case of the broadly termed “unusual circumstances.” The Appellate Division recently took up this issue in the unpublished (not precedential) decision of Rothfeld v. Rothfeld. There, the parties entered into a settlement agreement providing the Wife with four years of LDA, at $500 per week. Also contained in the settlement agreement was the Wife’s representation that she would be able to continue the standard of living that she enjoyed during the marriage because, in addition to her alimony payments and assets received via equitable distribution, she was able to earn income.
Approximately four years after entering into the settlement agreement, the Wife filed a motion to increase the amount and extend the term of the LDA, and to increase child support. In support of her application, the Wife certified that one of the parties’ children had been diagnosed with multiple disabilities, including OCD, ADHD and Asperger’s Disorder. As a result of those disabilities, the Wife asserted that she could not acquire gainful employment because caring for the child had become a full-time job.
After subsequent procedural history including an appeal and remand because the trial court initially denied the Wife’s application without oral argument, the trial court, after a plenary hearing, again denied the Wife’s application. The initial remand occurred because the Appellate Division concluded that the issue of the nature of the impact of the child’s disabilities on the Wife’s ability to work was not one that could be resolved “on the papers.”
In again denying the Wife’s application, this time following the plenary hearing, the trial court concluded that, while the child’s disabilities constituted a significant change not anticipated at the time of the divorce, the Wife failed to fulfill the “unusual circumstances” burden because she did not show how the impact of child-care responsibilities for the child impacted her earning capacity. The Wife even failed to provide any proof that she had sought employment, whether on a full-time basis with a child-care component, or on a part-time basis considering that the child was in a special private school until 2:30 p.m. each day.
The Appellate Division this time affirmed the trial court’s decision on appeal, adding only a brief commentary as to the distinguishing characteristics underlying LDA, as compared to reimbursement or rehabilitative alimony I detailed at the outset of this entry. Ultimately, this matter really came down the proofs, as the Wife’s application – based solely on the Appellate Division’s decision – seemed somewhat thin, especially in light of the high hurdle posed by an LDA extension request.