Even before the alimony statute was amended in 2014, there was a misconception that permanent alimony was actually permanent and could not be modified under any circumstances. I heard that tired argument many times despite there being a body of case law that dealt with retirement being a changed circumstance upon which alimony could be terminated or modified.

When the statute was amended, it put in procedures for dealing with retirement, both for post-amendment cases and for cases that were decided or settled prior to the amendment. Notwithstanding, you still heard a lot of the tired argument, conflating of pre and post-amendment standards and case law, and other confusion regarding the state of the law regarding retirement in pre-amendment cases.

Hopefully, more clarity has been brought to the analysis by Voynick v. Voynick, a reported (precedential) Appellate Division decision released on March 5, 2025. Judge Bergman, who wrote the decision, did not bury the lede. Rather, he summarized the finding near the beginning of the decision, as follows:

Based on the language in subsection (j)(3), after an obligor has shown they have reached a “good faith retirement age,” a prima facie showing of changed circumstances may be established by an obligor satisfying the standards set out in the Court’s seminal holding of Lepis v. Lepis, 83 N.J. 139 (1980). A typical method of showing a prima facie changed circumstance is through proof of a decrease in an obligor’s financial circumstances due to their retirement affecting their continuing ability to pay alimony at the level set forth in the current judgment or order. Here, we hold under subsection (j)(3), that a prima facie change of circumstance can also be shown by an obligee’s financial disclosure or other evidence in the record exhibiting: (1) an obligee has adequately saved for retirement and no longer has a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage; or (2) an obligee had the ability to adequately save for retirement after the final judgment of divorce and, if they had done so, would no longer have a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage.

Discovery and a hearing are necessary if genuine issues of material fact exist related to an obligee’s ability to have adequately saved for retirement affecting their continuing need for alimony. At a hearing, under subsection (j)(3), the obligor has the burden to prove by a preponderance of evidence that a modification or termination of alimony is warranted based on the factors set forth in N.J.S.A. 2A:34-23(j)(3)(a to -h).

Now, as will be discussed in a moment, the focus on the obligees ability to save was based upon the fact that while the payor had reached retirement age, his finances, as presented, did not demonstrate a prima facie showing of changed circumstances.

In this case, the parties divorced in 2003 and the husband agreed to pay $120,000 per year in permanent alimony. Their Property Settlement Agreement (PSA), also specifically provided that, “The parties specifically recognize that this agreement does not include an anti-Lepis clause.” This will be important in a second – dealing with one of the tired arguments.

Husband, who was a vet, sold his practice in 2020 but continued to work part time until May 2021 when he fully retired. He became eligible for full social security retirement benefits when he turned 66.4 years old in April 2023. He filed his motion to terminate alimony in July 2023 based upon his retirement which was obviously opposed.

In her reply, the wife disclosed her current net worth of $2.75 million including equity in her home and $1.6 million in retirement assets. Husband responded pointing out the wife’s retirement savings, the funding of a $2 million house that was placed in trust, the failure to disclose a family trust in the name of her wealthy father that passed away, failing to list or deny an inheritance from her brother, failed to deny that she hasn’t had to take distributions from her retirement assets, was capable of earning income in the 20 years post-divorce which could have added to the funding of her retirement and that she received more than $2.76 million in alimony over the years.

The trial court denied the husband’s motion finding that retirement was not a basis to seek relief in the parties’ PSA and also, that he didn’t satisfy his burden that he could not continue to pay alimony. The trial court also found that had the husband sought a reduction instead of a termination that would have “been a different argument.” But to foreshadow a bit, it wouldn’t, as will be addressed below.

As to the argument that the PSA precluded retirement as a change of circumstance because it wasn’t specifically agreed to, the Appellate Division dispensed with that quickly noting that there would have been no reason to reference that the agreement didn’t include anti-Lepis provisions, if changes of circumstances weren’t available to the parties to modify alimony.

The court next disposed with the argument that the husband only sought a termination not a modification. As to that point, the court held:

… Since we conclude the same legal principles of changed circumstances set forth in Lepis apply to both a termination and modification of an alimony obligation, the court’s ruling barring defendant from alternatively requesting a decrease was also a misapplication of the
court’s discretion. Defendant’s modification request is supported by the plain language of the PSA and permitting him to alternatively request a downward modification of alimony did not prejudice plaintiff because defendant’s burden to show a prima facie changed circumstance is the same for both termination and modification of alimony.

The court next affirmed the trial court’s finding that since the husband did not show a decrease in his financial circumstances, the attainment of retirement age was not a prima facie showing of changed circumstances. This section of the decision had a good primer on the current state of law from a statutory and decisional law framework. It also addressed the pre-amendment case law on retirement.

The takeaway from that section is that, “… based on the language set forth in subsection (j)(3) that an obligor reaching full social security retirement age would be deemed to have retired at “a good faith retirement age” ameliorating the previous need to show that the retirement was in good faith and “not voluntary.” So here, husband’s retirement was found to be good faith under the statute.

That said, the Court affirmed the finding that he failed to “… failed to make a prima facie showing that his income and assets were insufficient to continue paying his permanent alimony obligation or that his retirement impaired his ability to support himself based on the standard of living he had during the marriage.”

Of note, and seemingly a practice pointer going forward, the court noted that the husband failed to provide sufficient information in his CIS and Certification to enable the court to determine whether he made a prima facie showing as to his finances. While not specifically cited, I suspect that the court was addressing an analysis required by the Innes case (which were since included in the 2014 amendment) which basically says that assets divided at the time of the divorce are not available to be considered with regard to alimony. The Court was even more specific of the deficit in the husband’s filing holding:

Defendant provided no evidence, expert or otherwise, delineating his immune and non-immune assets or the income stream from those non-immune assets. This evidence is necessary to determine whether he has an ability to pay the currently ordered level of
alimony when compared to his financial circumstances at the time he entered into the PSA. Because defendant failed to adequately categorize the assets in his CIS and failed to engage in any financial analysis including an income stream analysis of his non-immune assets, the court’s finding—which found the approximate $8 million in assets held by defendant and the potential income stream which could be generated from these assets demonstrated defendant had the ability to continue paying alimony to plaintiff—was clearly supported by credible evidence in the record. We conclude there was no error in this finding.

Now, getting to what I really think is the showstopper in this opinion is the discussion regarding wife’s assets and her ability to save. The court noted that the Landers decision “… held that subsection (j)(3) “elevates the ability of the obligee to have saved adequately for retirement, listed only as a factor under N.J.S.A. 2A:34-23(j)(1), setting it apart from other considerations and
requiring its explicit analysis.”” In my experience, too often this is ignored or honored in the breach.

Voynick takes Landers a step further by holding that:

Subsection (j)(3) differs from subsection (j)(1) by explicitly setting forth the ability of the obligee “to have saved adequately for retirement” in the main portion of this subsection, separately from the other factors. We deem this formulation requires a reviewing court to specifically consider the ability of an obligee to have saved adequately for retirement in its analysis related to an obligor’s motion to terminate or modify alimony under subsection (j)(3). See Landers, 444 N.J. Super. at 324. This subsection of the statute explicitly mandates the court to undertake this analysis as part of its determination whether an obligor has met their burden to show a prima facie change of circumstances to trigger a review of their alimony obligation.

We determine under subsection (j)(3) that an obligee is required to produce competent evidence to support their position that they were unable to adequately save for retirement and they have a continuing need for alimony in order to maintain a comparative standard of living enjoyed during the marriage. This requirement is the first consideration listed in subsection (j)(3) after the obligation for the parties to file a disclosure of their financial
information.

By subsection (j)(3) requiring an obligee to affirmatively provide financial information, we determine the Legislature intended a reviewing court to independently consider an obligee’s ability to have adequately saved for retirement. We further determine this information is required for a reviewing court to determine an obligee’s continuing need for alimony at the time of an obligor’s retirement. These determinations are crucial in deciding whether a
prima facie changed circumstance has been shown. We find support for this proposition related to an obligee’s continuing need for alimony at subsection (j)(3)(g) which requires consideration of an “obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee.” N.J.S.A. 2A:34-23(j)(3)(g).

Based on the language of N.J.S.A. 2A:34-23(j)(3), we conclude the Legislature intended that a prima facie changed circumstance can not only be shown through a change in an obligor’s financial circumstances after retirement affecting their continuing ability to pay alimony, but also may be exhibited through an obligee’s financial disclosure or other evidence demonstrating a continuing need for alimony, or lack thereof. If the motion record demonstrates there is prima facie evidence demonstrating an obligee has adequately saved for retirement or had the ability to adequately save for retirement, discovery and a hearing is necessary to determine whether termination or reduction of alimony is warranted. A hearing is required where there is a dispute in material fact. Murphy v. Murphy, 313 N.J. Super. 575,
580 (App. Div. 1998); Lepis, 83 N.J. at 159. A material factual dispute “bear[s] directly on the legal conclusions required to be made and [such] disputes can only be resolved through a plenary hearing.” Spangenberg v. Kolakowski, 442 N.J. Super. 529, 540 (App. Div. 2015).

The court went on to the specifics of this case and held that:

After our review of the record, we conclude plaintiff did not provide a sufficient financial disclosure or evidence exhibiting that her current financial circumstances demonstrated a continuing need for alimony in the current annual amount of $120,000. We also determine plaintiff failed to provide specific reasons nor any analysis showing her inability to have adequately saved for retirement since the entry of the FJD over twenty years ago. In addition, we conclude defendant effectively challenged plaintiff’s assertions related to her continuing need for alimony and her ability to have adequately saved for retirement which created genuine factual issues in the record.

Accordingly, the matter was remanded for a plenary hearing. The Court further suggested discovery as follows: “We therefore direct the trial court to enter an order permitting the parties to conduct discovery concerning the other’s financial circumstances, including their respective assets, income, potential income stream from non-exempt assets and their income earned or their ability to have earned income after the divorce judgment was entered to the present time. This list is not to
be considered exhaustive…”

The Court went on to reiterate that the burden remains on the husband to prove that a modification or termination is warranted by a preponderance of the evidence. Moreover, it is his burden to prove that:

… (1) plaintiff has adequately saved for retirement and no longer has a continuing need for alimony at its current level in order to maintain the standard of living enjoyed during the marriage, or (2) plaintiff had the ability to adequately save for retirement, and if she had done so, would no longer have a continuing need for alimony, or the currently ordered amount of alimony set forth in the FJD in order to maintain the standard of living enjoyed during the marriage.

The takeaway of Voynick is that if you have a pre-amendment alimony obligation, you need to read this case to be able to address the issue to the Court.

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    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys. Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.