Recently I lost a dear client and friend, Bill*, after his long battle with brain cancer. Bill was a man with a kind-hearted spirit and a gentle disposition – one of those “really nice guys” that you just wanted to bend over backwards to help.
While Bill was fortunate enough to spend his last days with his loving wife, surrounded by her family, he also had the misfortune of spending his last days in a dispute with his former wife, who was still collecting alimony from him, garnished from his Social Security Disability Payments.
A while back, I posted Alimony Modification – A Judge’s Checklist. Bill had each and every box checked off – there was no doubt that his income was reduced, his former wife’s income had increased exponentially, and it was undisputed that he was disabled permanently and involuntarily.
We attempted to get the judge to see that Bill could no longer handle his alimony payments from his meager income and that his alimony should be terminated summarily – that is, without a hearing. After all, according to the seminal alimony modification case in New Jersey, Lepis v. Lepis, the Court need not hold a hearing on every single modification case when there are no facts in dispute, which was the case here.
Nonetheless, the court insisted that a hearing be held. This is an interesting contrast to the cases where judges refuse to hold hearings when denying motions outright which I blogged about previously – Motions to Reduce Support: When Applications Are Denied Without a Plenary Hearing, What’s Next?
However, Bill was too weak and too sick to move forward. He was dying of brain cancer. Our only option was mediation.
We settled the case shortly prior to Bill’s passing. He was able to pass with the knowledge that there would be no litigation for his wife to bear following his death and that the case was behind him.
Because the case was settled, it will never be a published decision, it will not be analyzed by family law experts and it will not be bound in the annals of case law in our State. But it still begs the question: if this factual scenario did not warrant the termination of support without a hearing, what factual scenario does?
*Name has been changed to protect client confidence.
Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or email@example.com.