A support award made at the time of divorce, whether by agreement or court order, may be adjusted based upon a finding of substantial changed circumstances. Lepis v. Lepis, 83 N.J. 139, 149-50 (1980). Courts must undertake a two-step process before modifying a support or maintenance provision. Id. at 157; Crews v. Crews, 164 N.J. 11, 28 (2000). First, the movant must make a prima facie showing of such changed circumstances as would warrant relief; then, the court will order discovery of an ex-spouse’s financial status and consider both parties’ financial positions, including the supporting spouse’s ability to pay. Lepis, supra, 83 N.J. at 157. For modification of an alimony award, the movant must demonstrate that “changed circumstances have substantially impaired the ability to support himself or herself.” Ibid. This refers to “the ability to maintain a standard of living reasonably comparable to the standard enjoyed during the marriage.” Crews, supra, 164 N.J. at 28. When a movant is seeking to modify child support the “guiding principle is the ‘best interests of the children.’” Lepis, supra, 83 N.J. at 157.

Factors to be considered on a motion for modification include “the dependant spouse’s needs, that spouse’s ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependant spouse at the former standard.” Id. at 152. Examples of changed circumstances include an increase in the cost of living; an increase or decrease in the supporting spouse’s income; and subsequent employment by the dependent spouse. Id. at 151. Changed circumstances “are not limited in scope to events that were unforeseeable at the time of divorce.” Id. at 152. Criteria include whether the change in circumstances is continuing and whether the MSA has made explicit provision for the change. Ibid. See also Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div.) (holding that the marital standard of living is central to determining changed circumstances, but that the agreement between the parties is also entitled to significant consideration), certif. denied, 180 N.J. 354 (2004).

Our courts have consistently rejected requests for modification based on circumstances which are only temporary. See, e.g., Larbig, supra, 384 N.J. Super. at 22-23.

However, as the court recognized in Larbig, supra, “[t]here is, of course, no brightline rule by which to measure when a changed circumstance has endured long enough to warrant a modification of a support obligation.” 384 N.J. Super. at 23. At some point, a reduction in earned income may be more than merely passing or temporary, particularly in view of the drastic downturn in the financial market and brokerage-related jobs in which husband (in this case) is employed.

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There are circumstances where previously known facts and information, properly established and relevant to such issues as child support, are brought to the attention of the court, and they should not, as a matter of law, be barred or disregarded. Family Part decisions, including support, must be equitable and just, and ultimately, properly documented information should, as a general rule, be considered when brought to the court’s attention.

See related Blog Post, published in the New Jersey Family Law blog.

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Once the moving party has established “a prima facie showing of changed circumstances warranting relief[,] . . . the court [has] the right to order full discovery regarding the financial circumstances of the other spouse.” Isaacson v. Isaacson, 348 N.J. Super. 560, 579 (App. Div. 2002).

A ninety-day period of discovery may be warranted in such a case before a plenary hearing is conducted. See R. 5:5-1(e).

“Disputes of material fact should not be resolved on the basis of certifications nor in reliance upon ambiguous terms in a property settlement agreement.” Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006) (citing Conforti v. Guliades, 128 N.J. 318, 328-29 (1992)).

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Not every Lepis application requires a plenary hearing. Harrington v. Harrington, 281 N.J. Super. 39, 48 (App. Div.), certif. denied, 142 N.J. 455 (1995); Lepis, supra, 83 N.J. at 159.

[T]o be entitled to a hearing on whether a previously-approved support award should be modified, the party moving for the modification “bears the burden of making a prima facie showing of changed circumstances.” Specifically, the party seeking modification of an alimony award “must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself.”

[Crews v. Crews, 164 N.J. 11, 28 (2000).]

See also Miller v. Miller, 160 N.J. 408, 420 (1999).

As a necessary and preliminary step to meeting this burden, a movant is required to submit both a current and a prior CIS. R. 5:5-4(a).

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A court is authorized to modify alimony orders “from time to time as circumstances may require.” N.J.S.A. 2A:34-23. Moreover, as the trial court recognized, “[w]hen the movant is seeking modification of an alimony award, that party must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself.” Lepis, supra, 83 N.J. at 157; see also Miller v. Miller, 160 N.J. 408, 420 (1999) (“In an application brought by a supporting spouse for a downward modification in alimony, such as the present case, the central issue is the supporting spouse’s ability to pay.”).

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In determining whether and to what extent a modification of a PSA is appropriate, the trial court may consider whether any of the equitable distribution was intended to provide for future needs. For example:

[A]lthough a spouse cannot maintain the marital standard of living on the support payments received, this would not ordinarily warrant modification if it were shown that a single large cash payment made at the time of divorce was included with the express intention of meeting the rising cost of living. In other cases, the equitable distribution award — which we have recognized is intimately related to support, — might have been devised to provide a hedge against inflation.

[Lepis v. Lepis, 83 N.J. 139, 153 (1980).]

Moreover, in determining the extent of the defendant’s alimony benefit, the court may consider the “trade-off” that the defendant bargained for and received in the PSA. As the court has previously recognized,

in exchange for receiving a larger share of assets, a spouse may agree to limit either the amount or the duration of alimony, or both. Where such trade-offs are shown to have occurred, this may be taken into account along with all other circumstances in determining whether an award of alimony should be modified and, if so, to what extent . . . .

[Shifman v. Shifman, 211 N.J. Super. 189, 195 (App. Div. 1986).]

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The party seeking modification of support “has the burden of showing such ‘changed circumstances’ as would warrant relief from the support or maintenance provisions involved.” Lepis v. Lepis, 83 N.J. 139, 157 (1980).

It is appropriate for the trial judge to evaluate a claimed change in circumstances from the time the support obligation was last modified. See Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009).

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Alimony obligations “are always subject to review and modification on a showing of ‘changed circumstances.’” Ibid. (quoting Chalmers v. Chalmers, 65 N.J. 186, 192 (1974)). “Changed circumstances” includes situations arising after the original divorce judgment such as the supporting spouse’s increase or decrease in income; illness, disability or infirmity; and the dependent spouse’s subsequent employment. Id. at 151.

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A decision regarding the modification of support obligations due to changed circumstances “rests within a Family Part judge’s sound discretion.” Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (citing Innes v. Innes, 117 N.J. 496, 504 (1990)). See also Storey v. Storey, 373 N.J. Super. 464, 470 (App. Div. 2004); Steneken v. Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004), aff’d as modified, 183 N.J. 290 (2005). On appeal, the court should not disturb that decision “absent an abuse of discretion.” Id. at 23.

It is a long-acknowledged policy in New Jersey to favor consensual agreements that were made to resolve marital controversies. Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). “The prominence and weight we accord such arrangements reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistently with their post-marital responsibilities.” Id. at 193. Therefore, “‘fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.’” Id. at 193-94 (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).

It is equally wellestablished that “[s]pousal support agreements are always subject to modification pursuant to N.J.S.A. 2A:34-23[,] upon a showing of changed circumstances.” Deegan v. Deegan, 254 N.J. Super. 350, 354 (App. Div. 1992) (citing Lepis v. Lepis, 83 N.J. 139, 145 (1980)). “The party seeking modification has the burden of demonstrating a change in circumstances warranting relief from the support or maintenance obligations.” Innes, supra, 117 N.J. at 504. A court may reject requests for modification based on circumstances which are only temporary, voluntary or which are expected but have not yet occurred. Bonanno v. Bonanno, 4 N.J. 268, 275 (1950); see also Lepis, supra, 83 N.J. at 151 (similarly observing that “[c]ourts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.”); Caplan v. Caplan, 182 N.J. 250, 268 (2005). A judge is therefore required to reject a request for modification based on circumstances that are merely temporary. Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009).

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An alimony order is subject to review and modification upon a showing of changed circumstances. N.J.S.A. 2A:34-23; Lepis v. Lepis, 83 N.J. 139, 145-46 (1980); see Crews v. Crews, 164 N.J. 11, 24 (2000). The party seeking such modification has the burden of demonstrating that changed circumstances have occurred. Innes v. Innes, 117 N.J. 496, 504 (1990); Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998). One changed circumstance that can result in a downward modification is a decrease in the supporting spouse’s income. Crews, supra, 164 N.J. at 30; Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div. 1999).

Thus, when the supporting spouse seeks a decreased alimony obligation due to changed financial circumstances, evidence regarding that spouse’s changed circumstances “would be material in determining whether [that spouse] can show that changed circumstances have substantially affected his or her ability to support himself or herself and the supported spouse.” Crews, supra, 164 N.J. at 30-31. In establishing alimony, a court may “take into account assets received by either party in the equitable distribution of the marital property.” Miller v. Miller, 160 N.J. 408, 420 (1999). In short,

in an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse’s ability to pay. A supporting spouse’s potential to generate income [through both earned income and the use of other assets] is a significant factor to consider when determining his or her ability to pay alimony.
[Miller, supra, 160 N.J. at 420].

The Miller Court further reiterated that the same factors applied in initially establishing alimony should be considered on a motion for a modification of a support order; namely, the dependent spouse’s needs, that spouse’s ability to contribute thereto, and the supporting spouse’s ability to maintain a dependent spouse at the former standard of living. Id. at 424.

To vacate a trial court’s findings concerning alimony, the appellate court must conclude that a trial court “clearly abused its discretion, failed to consider all of the controlling legal principles, or must otherwise be well satisfied that the findings were mistaken or that the determination could not reasonably have been reached on sufficient credible evidence present in the record after considering the proofs as a whole.” Heinl v. Heinl, 287 N.J. Super. 337, 345 (App. Div. 1996).

See related Blog Post by Eric S. Solotoff, Esq.

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