While the Appellate Division has yet to address the substantive application and meaning of the cohabitation provisions of the amended alimony law, it has now determined twice when the law may apply.

In October, I wrote about how the Appellate Division in Spangenberg v. Kolakowsi, a reported (precedential) decision, held that the cohabitation portion of the amended law does not apply to post-Judgment Orders finalized prior to the amendment’s September 10, 2014 effective date.  On March 2, 2016, the Appellate Division in the unpublished (not precedential) decision of Chernin v. Chernin, similarly held that the 2014 amendments, “by the specific terms of the statute’s effective date”, are not applicable in a situation where cohabitation was previously established pre-effective date.  The primary point to be taken here is that the change in the law alone is not enough to reopen a previously concluded matter – in this case, a cohabitation matter.

alimony movie poster

Here are the undisputed facts that you need to know:

  • The parties were married in 1958 and divorced in 1992.  The property settlement agreement provided that husband would pay permanent alimony of $100,000 per year until July 1, 1997, at which time the payments would increase to $150,000 annually.
  • In 1996, husband moved to retroactively terminate his alimony based on wife’s cohabitation.  Following a five day trial, the court granted husband’s motion in part by finding cohabitation, ordering wife to reimburse husband in a sum certain for past overpayments retroactive to when alimony commenced, and reducing husband’s annual alimony obligation by $12,000 annually.  There was no modification to the alimony duration.
  • Husband appealed, arguing that alimony should have been terminated pursuant to leading case law at the time.  Husband’s argument was rejected.
  • Following passage of the amended alimony law, husband again moved to be relieved of his alimony obligation based on wife’s cohabitation.  Counsel, during oral argument, confirmed that nothing had changed in the past twenty years following the prior modification other than the amendment’s passage.
  • The trial court found that the amendment’s passage constituted a change in circumstance and terminated alimony based on the trial court’s prior finding of cohabitation.
  • Wife appealed, arguing that the court erred in failing to give effect to the “anti-retroactivity provision” of the amended statute.

In reversing the trial court in wife’s favor, the Appellate Division quoted that anti-retroactivity provision, which provides:

This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into:

a.  a final judgment of divorce or dissolution;

b.  a final order that has concluded post-Judgment litigation; or

c.  any enforceable written agreement between the parties.

The Appellate Court determined that the parties’ post-Judgment litigation concluded in 1997 when a final Order was entered reducing the amount of alimony and leaving the permanent duration untouched based on the wife’s cohabitation.  In other words, the cohabitation issue was already addressed and the matter concluded.  As a result, husband could not simply reopen the issue based solely on the law’s amendment.  Citing Spangenberg, the Court concluded:

Because the Legislature has commanded that the 2014 amendments not be construed to modify the duration of alimony ordered or agreed upon, or to modify specifically bargained for contractual provisions incorporated into an enforceable written agreement between the parties, a judgment of divorce, or a final order concluding post-Judgment litigation, all of which applied here, the court plainly erred in relying on the amendments to modify the permanent alimony previously ordered in this case.

So there you have it.  A second decision from the Appellate Division – this one expressly following Spangenberg – addressing when the cohabitation provisions (and, more broadly, the amended law as a whole) may apply to a given set of facts and circumstances.  The new law itself is not a change in circumstances meriting a review of a previously closed case.  Similar to that case, where the Appellate Division used the word “shall” (rather than “may”) when describing whether alimony should terminate in a cohabitation situation under the statute, the Appellate Court did not address whether terminating alimony was the only appropriate measure had application of the new law been deemed appropriate.  Stay tuned for future developments.


*Photo courtesy of Google free images.

In my opinion, most people (typically women) decide whether or not to change their name to a maiden name at the actual time of the divorce proceeding, if not sooner.  The decision is a largely personal one and in my years of practice I’ve heard the gamut of reasons why to or not to change from the married name.  N.J.S.A. 2A:34-21 is the statute that governs legal name changes in our state.

Rarely do we see the courts chime in on this issue, because generally its quite mundane.  However, a recent published trial court opinion stemming out of Passaic county gives guidance on when is the appropriate time to make a request for a name change and how timing may be everything when it comes to this issue.

In the matter of Leggio v. Leggio, Mrs. Leggio filed an application with the family court seeking to change her name.  She provided the court with a copy of her dual judgment of divorce from bed and board entered in 2004.  Ten years later, she sought to change her name.

A critical point in this matter that cannot be overlooked is the distinction between a divorce from bed and board and a divorce.  New Jersey does not recognize legal separation for married people.  However, a divorce from bed and board has been considered by many to be the closest available option to a legal separation.  However, those who enter into a divorce from bed and board are not legally divorced and their marital bond is not dissolved. As an example, they can still remain on their spouse’s health and/or car insurance.  In order to become ‘divorced’, in the true sense of the word, from a divorce from bed and board, one party must file an application with the court seeking to convert their judgment into a final judgment of divorce.

The Leggio’s never did that.  So, when Mrs. Leggio came to the court seeking to change her name, the court looked to the statute which explicitly states, “The court, upon or after granting a divorce from the bonds of matrimony to either spouse…may allow either spouse…to resume any name used by the spouse…before the marriage…,or to assume any surname.”  This very language gives our courts authority to grant a name change incident to or after a “divorce from the bonds of matrimony”.  Because a divorce from bed and board does not dissolve the bonds of matrimony, the court held that a name change could not be granted unless and until a final judgment of divorce is entered.  The mere passage of time is insufficient.


Although none of us can see the future (not yet anyway), when drafting a divorce agreement it is absolutely imperative to include as many potential future scenarios that you foresee to occur.  Equally, if not more important, is to actually spell out exactly what your intentions and expectations are and provide examples if necessary.  More often than not, a client inquires as to why the precise wording matters so much when “everyone really knows what that provision is supposed to mean”.  Unfortunately, this could not be further from the truth.  While you may have one interpretation of a specific provision, your ex may have another.  Even if you both have the same understanding at the time the agreement is signed, if the provision is vague and ambiguous, this allows one party to come later and argue that it really meant something different.  This issue typically rears its head down the road when one party is seeking to enforce a provision of their Agreement that is somewhat vague and ambiguous.

In the unpublished (non-precedential) recent case of N.G. v. N.B.G., the Appellate Court reversed and remanded for further proceedings the trial court’s denial to fully address the father’s request for increased custody and parenting time under the terms of their Marital Settlement Agreement.   This case may have had a very different result had the parties not been clear about their intent and expectations in their Agreement.

In the parties’ Marital Settlement Agreement, it specifically noted that after one-year under the current parenting time plan, they would revisit the father’s parenting time schedule for a possibility of increasing parenting time.  If the parties did not agree to a modification, then either party had the right to seek a de novo review (essentially a fresh look) from the Court of the parenting schedule.  As could be predicted, after the one-year period, the parties did not agree to a modification and the father sought additional parenting time from the Court.

The trial court denied the father’s request finding that although their agreement allowed for such application, there was no “big change” in circumstances that would lead her to believe it would be in the children’s best interests to have additional parenting time with the children.  The Appellate Court found this to be in error given that the trial court incorrectly focused on the need for a “big change” rather than focusing the children’s best interests.  The court also noted that the parties’ expressly bargained for provision of their Marital Settlement Agreement requiring de novo review (i.e. the existing order was not binding and they were supposed to start from scratch) was not utilized by the court in the disposition of the father’s application.  The Appellate Court remanded the case to the trial level finding that a plenary hearing (trial) was necessary given the conflicting perceptions of the parties, the passage of time and intervening events. The Court felt that a full hearing would best effectuate the express intent of the parties’ Agreement and the reasonable expectations of both parties.

The take away here is that the intention is that there be a de novo review, you may want to spell out exactly what is supposed to happen at the time of the review.


Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution.  Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

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.

ID-10026029 (Image from freedigitalphotos.net)

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 etbaer@foxrothschild.com.

Most, if not almost every matrimonial settlement agreement that I have seen contains language providing that modifications to the agreement must be in writing to be effective.  What happens, then, when an agreement is orally modified, and then the parties abide by that oral modification?  This was one of the issues on appeal in the new unpublished (not precedential) decision from the Appellate Division, Loch v. Loch

What do you need to know?

  1. The parties were divorced and entered into a written settlement agreement.
  2. The agreement provided that husband would pay wife a certain number per month in child support, and limited duration alimony.
  3. The agreement provided:   [t]his agreement . . . is the whole and only agreement between Husband and Wife and shall not be modified or varied by oral understanding. A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement.”
  4. Soon after the PSA took effect, plaintiff’s business experienced financial difficulty.  In order for plaintiff to remain current with his support obligation, defendant gave him permission to make withdrawals from the undivided marital retirement assets with the written proviso that the withdrawals would not diminish her one-half interest.
  5. In early 2006, the husband sold his interest in the business.  The transaction impacted husband’s ability to pay support, so the parties and attorneys met to discuss modifying the settlement agreement.
  6. The terms of the agreement reached were never memorialized in writing and negotiations broke down.
  7. Husband alleged that wife agreed at the meeting to permanently reduce alimony and child support.  He also alleged that his former attorney drafted an undated document titled “Amendment to Property Settlement Agreement”, which, among other things, memorialized the reduced support figure.
  8. Husband reduced his support payment to that set forth in the undated “Amendment” document.  Wife accepted the reduced payments and did not seek to enforce the agreement, claiming it was not worth it, and that she had “accepted his payments with the understanding that some kind of written document would be forthcoming…”
  9. Husband later further reduced his support payments.
  10. In July 2011, wife filed a motion to enforce the original settlement agreement.  Husband responded, asking that the agreement be enforced/modified, based on the 2006 oral agreement and subsequent course of conduct.
  11. Without oral argument or a plenary hearing, the trial court entered an order in September, 2011, finding that an oral agreement existed between the parties, but that it did not modify the original agreement.  As a result, it compelled husband to pay support arrears pursuant to the original agreement, among other forms of relief.
  12. In a subsequent Order, following a phone conference between the attorneys and the court, the court provided that, while the wife orally agreed to a decrease in support, she had not waived the arrears.

Addressing the issue of whether the settlement agreement could be orally modified, the Appellate Division recited fundamental principles of contract law, providing:

It is well-settled that a contract provision requiring modification by writing ‘may be expressly or impliedly waived by the clear conduct or agreement of the parties or their duly authorized representatives.'”

As a result, the Court concluded that the trial court erred in “holding that, absent a written modification, it could not consider whether the parties verbally agreed to modify the PSA or demonstrated such an intention through their five-year course of conduct.”

For practitioners, this case confirms that language in a settlement agreement providing that modifications to an agreement are only effective if made in writing may not hold when compared to the parties’ subsequent conduct.  Perhaps additional language providing that the parties’ course of conduct cannot override the written modification requirement may prove effective.  Ultimately, each situation will rest on its own facts and circumstances.


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.

Continue Reading Alimony Modification – A Judge's Checklist

As a continuation to last week’s post regarding what happens when trial courts fail to grant hearings to supporting spouses when they may be warranted, i.e. upon a showing of changed circumstances, this blog post will focus on those times where a hearing is deemed unnecessary based on the facts of a given case. This sometimes occurs in situations where an obligor is self-employed, has the ability to control his or her income, and is attempting to capitalize on the down economy in order to wriggle out of support obligations, sometimes only a few short years after the initial support award.

This type of issue was addressed at length in a prior blog post by Eric Solotoff, Esq. in the context of a discussion of Donnelly v. Donnelly where a self-employed attorney was denied a reduction to his alimony obligation two years following the entry of the Final Judgment of Divorce based on a purported downturn in his law practice. In these types of instances, trial courts have followed the mantra that where the supporting spouse owns his own businesses, the income of the self-employed obligor must be viewed “more expansively.”

For example, in the 2010 case of Pisciotti v. Pisciotti, the defendant-husband appealed from an Order denying his motion to reduce his alimony obligations and to pay child support. At the time of their divorce in 1999, the parties entered into a Property Settlement Agreement (“PSA”) obligating the husband to pay $3,000 per month in alimony, as well as child support in the amount of $4,207.34 per month. Ten (10) years following the parties’ divorce, the husband filed a motion to reduce his support obligations, arguing that his income had substantially declined since the time of the divorce and that his assets, which included several heavily mortgaged properties, had decreased significantly in value. The husband also asserted that the fitness center business, in which he was a co-investor and employee, had suffered during the economic downturn, thereby diminishing his compensation therefrom. The husband supplied various materials in support of his motion, including an updated Case Information Statement, his certification, and personal tax returns. The former wife opposed the motion, arguing that the husband’s motion was not adequately supported, and therefore he had not established a prima facie change of circumstances.

Continue Reading For Self-Employed Litigants, Is There A Higher Standard for Modification of a Support Obligation?

In this economy, you would be surprised to see how many judges are jaded by applications brought by supporting spouses to reduce their support obligations based upon a reduction in income. After all, some judges entertain these applications on their daily docket and oftentimes see supporting spouses who are simply attempting to capitalize on the down economy and lack any actual merit to their cases. This blog post will explore one of the reactions by judges to this type of application; namely, denying the request of the supporting spouse outright without even holding a hearing, taking testimony, and making credibility findings.

Support obligations are always modifiable by the family court upon application of the supporting spouse.  Typically, this type of application requires the supporting spouse to make a threshold prima facie showing that “changed circumstances have substantially impaired the ability to support himself or herself.” Lepis v. Lepis, 83 N.J. 139, 157 (1980). When such a showing is made, the Court must next determine if a plenary hearing is warranted. This is sometimes referred to as the two-step Lepis analysis.

Continue Reading Motions to Reduce Support: When Applications are Denied without a Plenary Hearing, What's Next?

With the economic downturn and slow down in the economy since 2008, there has been a lot more post-judgment litigation to reduce alimony and child support. Much of this litigation has been legitimate; other has been brought by opportunists, throwing around buzzwords and crying about the economy when there is really no substantial change of circumstance.  Moreover, there is no uniformity as to what a "substantial change of circumstance" really is and judges have been all over the map, from judge to judge and county to county.

One would think that after a 17 month job search that culminated in the alimony obligor accepting a job where he had a two hour commute to Pennsylvania and which resulted in a 22% reduction in his income from the time of the divorce would be a no-brainer substantial change of circumstances.  If you thought that, you would be wrong.  In fact, the trial judge in the case of Austin v. Austin did not find this to be a change of circumstances. The Appellate Division, in an unreported (non-precedential) decision released on December 6, 2012 reversed finding this to be "Lepis quality change of circumstance."

Even then, there may not be an automatic reduction in alimony.  The Appellate Division stated:

We do not suggest that the Family Part must reduce plaintiff’s alimony obligation. The trial court should conduct an evidentiary hearing in the event further review of the record
reveals a genuine issue of material fact. We leave open to the Family Part’s discretion to what extent, if any, the totality of the circumstances impels a permanent change in the alimony component of the PSA. However, that court must now treat plaintiff’s current employment situation and lessened income (and defendant’s present health concerns) as significant vectors affecting the ultimate determination of a fair and reasonable
alimony award.

Because there is no uniformity as to what a "Lepis quality change of circumstances" is, and because these cases are determined on a case by case basis, I suspect we will continue to see these decisions all over the map.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group 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 practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

As we know, limited duration alimony ("LDA") is alimony for a definite period of time.  Unlike rehabilitative alimony where there is a goal in mind to be reached by the end of the rehabilitation period and which can possibly be extended of the goal has not been reached, per the statute, the term of LDA is not supposed to be able to be modified except for "unusual circumstances." Of course, even limited duration alimony is subject to modification based upon "changed circumstances." Of note, however, is that retirement has been recognized as a possible change of circumstances sufficient to seek a modification. 

The issue of whether early retirement could be used by an alimony payor in order to terminate his LDA obligation was recently addressed in the case of Hendrickson v. Hendrickson, an unreported (non-precedential) opinion released on November 5, 2012.  In that case, the parties agreed to an 8 year term of LDA at the time of the divorce in 2006, in the amount of $265 per week, that actually was reduced to $145 per week to take into account that the wife’s child support obligation because the husband had custody of the children.  

The husband had been working at Fort Monmouth for more than 30 years when it closed in 2011.  The husband asserted that though he had been offered a position in Aberdeen, Maryland, the net effect of the transfer would have resulted in a reduction of income and increased expenses.  Moreover, he was able to retire for health reasons and collect his retirement benefits.  As a result of a claimed inability to pay, the husband filed a motion to terminate his LDA obligation.  

The trial court denied the request finding that the early retirement was not a change of circumstances.  An unsuccessful motion for reconsideration was denied, as well.  The Appellate Division affirmed the decision, but for different reasons.

Continue Reading Can a payor retire to get out of his limited duration alimony obligation?