Interspousal Agreements

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

The number of college graduates living with their parents has almost doubled since 2007. Currently, over 45% of 26-year-olds live at home with their parents. The figures highlight the difficulty that many young Americans have had in establishing careers following the longest recession this country has faced since the Great Depression. Some children, although employed,

Most people are aware that a supporting spouse may be entitled to modify an alimony obligation upon a showing of “changed circumstances.” However, many people do not know that the “leg-work” that they have to do to set themselves up to succeed on such a Motion begins long before the parties ever go to Court, especially if a supporting spouse is asking for relief on the basis of a purported job loss or reduction in income.

Below is a non-exhaustive list of items that a Judge will look for when a supporting spouse is requesting to reduce his or her alimony obligations:

• Has the applicant proven that his/her circumstances have changed such that he/she would be entitled to a child support or alimony reduction – Common scenarios constituting changed circumstances include:
       o A reduction in a party’s income;
       o Illness;
       o Retirement;
       o The receipt of an influx of liquid assets;
       o Cohabitation of the supported spouse.


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An interesting issue was recently considered by the Court in the case of Muller v. Muller. Specifically, the Appellate Division examined whether a husband could compel the sale of the marital home when he had conveyed his interest by way of deed about ten years earlier, but the parties’ Property Settlement Agreement (“PSA”) had provided for the husband’s continued ownership.

The parties in Muller were married for 17 years. When they divorced in 1990, they entered into a PSA, which, in part, provided as follows:

EQUITABLE DISTRIBUTION
A. Husband and Wife agree to divide equally the personalty . . . upon sale of the premises or child’s emancipation, whichever shall first occur.
B. Upon execution of contract of sale of the above premises, Husband agrees to put his interest in the marital home in trust for Child.
. . . .

REAL ESTATE
A. Husband agrees to pay the mortgage payments [on the marital home] . . . until the time that child graduates from college, or reaches the age of 22, whichever shall first occur[.]

The husband paid the mortgage from the time of the divorce until around 1999 when he defaulted on the payments. The mortgagee instituted foreclosure proceedings in or around July of 2000. In order to avoid foreclosure, the wife borrowed about $60,000 and refinanced the property. The husband executed a deed and conveyed the wife his ownership interest in the property for consideration of $50,000. As a result, the wife exonerated him of the debt the he had incurred by defaulting on the mortgage payments. At the point, the child was 21 years old and had graduated from college.


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 Virtually every interspousal agreement contains a modification clause whereby the parties set forth procedures for subsequent enforceable modification. Many are constructed as follows:

No modification or waiver of any of the terms of this Agreement shall be valid unless: (1) in writing and executed by the party to be charged; or (2) ordered by a court of competent jurisdiction upon appropriate notice and upon an appropriate showing of changed circumstances as and if allowed under New Jersey law. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be deemed a waiver of any subsequent breach or default of any provision contained in this Agreement.

Note that there are two ways under this clause in which an agreement may be modified: (1) a subsequent writing; or (2) ordered by a court. As to the second, a court, generally, has the inherent power to modify support provisions of an agreement. Where an agreement restricts this power (such as would be the case in an agreement which contains a “non-modifiable” alimony obligation), the restriction will be upheld as long as it does not violate public policy.

However, for the purposes of this article, it is the first – modification by writing – as to which this article is addressed. Let’s take a look at the elements of the writing methodology:

(a)         A writing; and

(b)         Executed by the party to be charged.


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It is well-settled law in New Jersey that child support and alimony awards are always modifiable. While there is an abundance of case law in the area of post-judgment modifications of support obligations, particularly in this economic climate, the most often cited case for modification is the seminal New Jersey case of Lepis v. Lepis, 83 N.J. 139 (1980). Indeed, the Lepis Court was the first in holding that when changed circumstances substantially impinge upon the supporting spouse’s ability to pay support at the level ordered, a modification of the support order might be necessary. The burden to prove this change in circumstances falls upon the supporting spouse when such a downward modification is sought.

A reduction in the supporting spouse’s income has long been recognized as a changed circumstance warranting a support modification, so long as it is not temporary in nature. In addition, the recent Appellate Division case of Angelastro v. Angelastro, recently solidified the notion that a support modification may be sought when the supported spouse’s economic circumstances change for the better.

In Angelastro, the parties’ property settlement agreement, executed in September of 2008, awarded the wife alimony as follows:

The [h]usband shall pay to the [w]ife[,] starting at the sale of the marital home[,] the sum of $350[] a week in [a]limony commencing for a period of six (6) years. Upon the completion of aforementioned six (6) years[,] the [h]usband’s [a]limony obligation shall reduce to that of $200[] and continue for a period of eight (8) years thereafter representing a total payment period of fourteen (14) years.

In addition, child support in the amount of $200 per week was provided for. The parties’ property settlement agreement specifically predicated the above support awards upon the wife’s imputed income of approximately $25,000.


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This blog post is written with input from Eliana T. Baer, who, along with Robert A. Epstein, was instrumental to the outcome of the below case. I thank them both for their extensive time and efforts, without which this result would not have been possible.

An important reported decision was decided by the Appellate Division concerning the distribution of post marital contribution of pensions and retirement plans. A copy of the case can be found here. While the case itself concerned a former service member’s military retirement pay, the matter has wide implications for all retirement plans which are not distributed at the time of divorce. This was a case which I had alluded to in a previous blog which can be found here, and in which we represented Thomas Barr, who had earned credits toward a military retirement during his marriage. In the case of Barr v. Barr, the parties were divorced after the husband, Thomas, had served eleven years of active duty in the Air Force. Thomas was not represented by counsel at the time of the divorce and his wife’s attorney prepared a property settlement agreement which provided that "The Wife will receive 50% of Husband’s pension benefits attributable to his 11 years in the military service only. Such benefits are to be distributed when Husband commences receiving same." After the parties divorce, Thomas went on to enroll in the reserves and during that time, accumulated enough time to entitle him to military retirement pay.

When Thomas began receiving his retired pay, he calculated what he believed he owed his former wife, Judith, and made a deduction for taxes that he had to pay. This went on for a period of time, and the parties had a disagreement and Thomas ceased paying. When Judith made an application for enforcement, Thomas realized that the amount that he had been paying was what he believed to be the incorrect amount, and in his response to her motion, asked that the amount be adjusted. Specifically, he argued, in part, that because the formula used to calculate retired pay benefits considers a military member’s rank pay at retirement as well years of service, it was possible to calculate the amount that was attributable to his rank at the time of the parties’ divorce, which would give meaning to the agreement of the parties that Judith would only be entitled to the portion attributable to his active duty. A service member receives points for each day of military service: one point for each day of active military service and two points for each day of reservist duty. Additional points accrue based on the completion of certain training, drills and funeral honors duty. The actual member’s benefit is the product of the base pay for the rank achieved at retirement and two-and one-half percent of the points representing the years of service credited.


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A recent case in which one party sought to enforce a purported settlement demonstrates the difficulties that arise when there is no signed agreement. In the unreported ( non-precedential) case of Galdo v. Hagarty, the parties were both represented by counsel during a dispute about the payment of child support and college expenses for one of their children. The father had filed an appeal of an order which required him to pay a percentage of college expenses and the mother filed an application for enforcement of the order. Thereafter, the parties agreed to explore a settlement and proceeded to negotiate through their counsel. Over a course of months the attorneys exchanged correspondence as well as emails. The mother received copies of many of the communications. 

Subsequently, the mother’s attorney faxed to the father’s attorney a proposed settlement. Father’s attorney then emailed a revised agreement  the next day. Twelve minutes later, mother’s attorney sent an email agreeing to the proposal and asking that Father’s attorney confirm that there was a settlement. Approximately an hour later, Father’s attorney sent a confirming email.    Father then took no further action on the appeal and it was later dismissed. Father then made an application to terminate child support for one of the children, which was not opposed by the mother.

 

Several months later,  the mother made an application to vacate the order terminating the child support, and enforcing the college expenses order which was the subject of the earlier appeal and settlement. She argued that there had been no settlement agreement that was reached. The father replied that there was in fact a settlement which was evidenced by the communications between the lawyers as well as the conduct of the parties after those communications. The father made a cross application for enforcement of the settlement agreement. The trial judge denied the father’s application for enforcement of a settlement and enforced the earlier order which required the father to pay a percentage of the college expenses.


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We have recently blogged on the requirement that there be oral argument on substantive motions if it is requested.  Another requirement is that court’s should hold plenary hearings (i.e. trials) when there are conflicting certifications regarding a material fact in dispute.  That requirement was made clear again in the unreported (non-precedential) decision in Marquez v. Cabrera released on July 15, 2010. 

In this case, the Property Settlement Agreement provided that the wife got to keep two pieces of real estate owned by the parties, seemingly their largest assets, while the husband remained responsible for some debt associated with the properties.  This does not seem to pass the smell test on its face, a fact not lost on the Appellate Division in its decision.  The husband moved to set aside the agreement, alleging fraud – essentially that a signature page from a different agreement was appended to the one filed with the court on the day of the divorce hearing.  Of course, the wife denied this.  There was some credence on its face to the husband’s arguments given that there were two page sevens of the agreement. 

In any event, the trial court  denied the motion finding the wife more credible.  The problem there is that court are not supposed to make credibility determinations on mere certifications alone.  Rather, as noted above, if there are competing certifications, a plenary hearing must be held.  As such, the matter was reversed for a plenary hearing.  In addition, the Appellate Division held, "because the motion judge made credibility determinations and "may have a commitment to [her] findings," the plenary hearing must be conducted before a different judge." 


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When lawyers say you should never represent yourself, even in so called, “simple” cases,  they are often accused of being greedy, driving up fees, and unwilling to acknowledge that there are smart people out there that are capable of working out the terms of a settlement.  I have recently been involved in a case which has been really bothering me. It is the perfect example of an intelligent, thoughtful, detailed oriented individual who believed he knew what he was agreeing to twenty three years ago when he was divorced and now finds himself in a position where a trial court has interpreted his divorce settlement agreement far differently than he did back then.

 In my case, my client did not have an attorney at the time that he was divorced .  He and his wife were able to reach an amicable agreement as to the terms of their divorce and she hired a layer to draft the agreement and put the divorce through.  When they got the issue of my client’s retirement benefits, he agreed to language which he thought would limit his ex-wife’s share of his retirement. Unfortunately, he did not have his own counsel to inform him of what is often referred to the “marital foundation” theory, which essentially means that as a result of the foundation that is built in the early part of employment ( which usually occurs during the marriage), a former spouse will be entitled to the benefit of  some post marital efforts.

 

Usually, a former spouse’s entitlement to a retiree’s pension is calculated by use of what is known as a “coverture” fraction. In its simplest form, the coverture fraction is one in which the numerator is the number of years or months that the employee worked during the marriage and the denominator is the total number of months or years worked. That fraction is then multiplied by the percentage of which the former spouse is entitled ( usually 50%). The resulting number is the actual percentage of the pension payment that the former spouse will receive.  This fraction is used for several reasons. First, as I have previously stated, the theory is that during the marriage, a foundation is built which allows the working spouse to advance in later years. Second is the reality that this is a mathematical way to segregate out the marital portion. It is not, however, a perfect science given the way that the majority of pensions are calculated.  The end result is often that the former spouse shares to some extent in a pension benefit that is calculated based upon a higher salary which was earned after the divorce.

 


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