When PSA terms are “plain and explicit” and “set forth in clear and unambiguous language, leaving no room for interpretation,” the court will enforce them “as written and agreed to by the parties, absent a substantial change in circumstances” or unless they “would no longer be fair or equitable.” Dolce v. Dolce, 383 N.J. Super. 11, 21 (App. Div. 2006); see also Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (perceiving “no inequity or manifest injustice in enforcing the plain and clear terms of the PSA as found by the motion judge”). Moreover, “‘fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.’” Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).

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When PSA terms are plain and explicit and set forth in clear and unambiguous language, leaving no room for interpretation, the court will enforce them as written and agreed to by the parties, absent a substantial change in circumstances or unless they would no longer be fair or equitable originally appeared on NJ Family Issues on January 8, 2012.

A party to a matrimonial action who seeks a modification of his or her support obligations ordinarily must show changed circumstances since the establishment of those obligations. See Lepis v. Lepis, 83 N.J. 139, 145-49 (1980). However, the parties may enter into a property settlement agreement under which support obligations will be modified at a specific future date without a showing of changed circumstances, at least in a case in which the initial obligations exceed what would be provided under the Child Support Guidelines. See Weber v. Weber, 211 N.J. Super. 533, 535 (App. Div. 1986).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Parties may enter into a property settlement agreement under which support obligations will be modified at a specific future date without a showing of changed circumstances originally appeared on NJ Family Issues on December 21, 2011.

The duty to pay alimony is always subject to modification or termination upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The right to a modification based upon changed circumstances is also established by statute. N.J.S.A. 2A:34-23 provides:

Pending any matrimonial action . . . brought in this State or elsewhere, or after judgment of divorce . . ., the court may make such order as to the alimony or maintenance of the parties, . . . as the circumstances of the parties and nature of the case shall render fit, reasonable and just[.] . . . Orders so made may be revised and altered by the court from time to time as circumstances may require.

Among the “changed circumstances” that warrant modification of an alimony obligation is a “decrease in the supporting spouse’s income.” Lepis, supra, 83 N.J. at 151. Changed circumstances “are not limited in scope to events that were unforeseeable at the time of divorce.” Id. at 152. If the party seeking modification or elimination of the payment obligation establishes a prima facie showing of changed circumstances that has “substantially impaired the [obligor's] ability to support himself or herself,” the court should require both parties to make “full disclosure” of their financial status, including tax returns, and thereafter determine the extent of any modification of the alimony obligation. Id. at 157.

When an obligor asserts that retirement constitutes a change of circumstances, the court must also evaluate the age and health of the retiring party, the motives behind and timing of the retirement, the ability to pay maintenance after retirement, and the dependent spouse’s ability to provide for himself or herself. Deegan v. Deegan, 254 N.J. Super. 350, 357 (App. Div. 1992). Even if the payor spouse advances rational reasons for retiring, the crucial determination is whether the advantage to the retiring payor spouse outweighs the disadvantage to the payee spouse. Id. at 358. If that question is answered affirmatively, then retirement will constitute a change in circumstances sufficient for a modification of a spousal agreement. Ibid. As such, where the payor spouse “has substantial reasons for retiring . . . and the effect on the payee spouse is minimal (due, for example, to other available income, qualifying for social security, or new employment) the balance will be struck in favor of the payor.” Ibid.

If the obligor establishes a prima facie change of circumstances, and demonstrates that the advantages to him of retiring substantially outweigh the disadvantages to the payee, the court must determine whether, and to what extent, the obligor’s alimony obligation should be modified. Innes v. Innes, 117 N.J. 496, 504 (1990). In making that determination, the court is prohibited from considering the obligor’s pension income as a source for the payment of alimony if that pension has already been subject to equitable distribution in the parties’ divorce. Id. at 505-06. ^[1] In Innes, the Court relied upon a portion of N.J.S.A. 2A:34-23, which provides:

When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.

[Innes, supra, 117 N.J. at 505.]

The Court determined that N.J.S.A. 2A:34-23 codified existing judicial precedent establishing that pension benefits that had been subject to equitable distribution could not subsequently be used to calculate available income when determining whether to modify an alimony award. Id. at 506. The Court observed that the plaintiff’s “entire pension was
treated as an asset for purposes of an immediate offset equitable-distribution award . . . . [and] [n]othing in the record suggests that merely a portion of [the obligor's] pension was considered marital property subject to equitable distribution.” Ibid. For that reason, the Court held that N.J.S.A. 2A:34-23 “immunize[d]” the obligor’s pension “from consideration in alimony-modification determinations.” Ibid.

The prohibition on such double-dipping found its origins in D’Oro v. D’Oro, 187 N.J. Super. 377 (Ch. Div. 1982), aff’d, 193 N.J. Super. 385 (App. Div. 1984). In that case the trial court determined it would be unfair if the dependent spouse were able to assert what amounts to a double claim on the spouse employee’s pension. Id. at 378. See Steneken v. Steneken, 367 N.J. Super. 427, 440 (App. Div. 2004), aff’d, 183 N.J. 290 (2005) (refusing to extend the prohibition on double-dipping to other assets). Stated differently, it would be inequitable for the dependent spouse to surrender the right to share in the other spouse’s pension for purposes of equitable distribution, and then subsequently be able to obtain access to that same asset by having it included “in [the] cash flow for determination of an alimony base.” D’Oro, supra, 187 N.J. Super. at 379.

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1. N.J.S.A. 2A:34-23(b)(13) provides that an asset already subject to equitable distribution as part of a divorce shall not be considered an available resource for purposes of the payment of alimony.

Where the payor spouse has substantial reasons for retiring and the effect on the payee spouse is minimal (due, for example, to other available income, qualifying for social security, or new employment) the balance will be struck in favor of the payor originally appeared on NJ Family Issues on December 21, 2011.

The goal of alimony is to “assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed . . . during the marriage.” Crews v. Crews, 164 N.J. 11, 16 (2000). Nonetheless, courts retain equitable power to modify alimony obligations at any time on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 145-46 (1980); N.J.S.A. 2A:34-23. In such cases, courts should consider whether the alleged change is “continuing” or merely “temporary,” Innes v. Innes, 117 N.J. 496, 504 (1990), and “whether the agreement or decree has made explicit provision for the change.” Lepis, supra, 83 N.J. at 152. One well-recognized ground for changed circumstances is a decrease in the supporting spouse’s income. Id. at 151; Innes, supra, 117 N.J. at 504.

When establishing or modifying an alimony obligation, a court must consider N.J.S.A. 2A:34-23(b).

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The goal of alimony originally appeared on NJ Family Issues on December 19, 2011.

Trial courts retain jurisdiction to modify marital agreements on a showing of changed circumstances notwithstanding the existence of a PSA. Lepis, supra, 83 N.J. at 148-49. “[T]he terms of such agreements should receive continued enforcement without modification only so long as they remain fair and equitable.” Ibid. Moreover, “[t]he question is always what is in the best interests of the children no matter what the parties may have agreed to.” Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Trial courts retain jurisdiction to modify marital agreements on a showing of changed circumstances notwithstanding the existence of a PSA originally appeared on NJ Family Issues on November 29, 2011.

In this case, although no finding was necessary at the time of the parties’ divorce by virtue of their settlement, Weishaus v. Weishaus, 180 N.J. 131, 144-45 (2004), their standard of living remains “the touchstone” for subsequent motions for modification of the alimony award based upon a claim of changed circumstances. Id. at 141; Crews v. Crews, 164 N.J. 11, 16 (2000); Tannen v. Tannen, 416 N.J. Super. 248, 275 (App. Div. 2010).

Because a property settlement agreement reflects a settlement and compromise of the parties’ claims, the amount of alimony agreed upon, although relevant, is not necessarily dispositive of the amount of money needed by defendant to maintain the marital lifestyle in the absence of an expression of that standard by the parties or a finding by the court.

Further, the statutory factors set forth in N.J.S.A. 2A:34-23(b) should be considered in making any determination regarding the modification or termination of alimony. See Crews, supra, 164 N.J. at 26.

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When no finding was necessary at the time of the parties’ divorce by virtue of their settlement, their standard of living remains the touchstone for subsequent motions for modification of the alimony award based upon a claim of changed circumstances originally appeared on NJ Family Issues on November 13, 2011.

“Absent `unconscionability, fraud, or overreaching in the negotiations of the settlement, … no legal or equitable basis exists to reform the parties’ property settlement agreement.” N.H. v. H.H., 418 N.J. Super. 262, 282 (App. Div. 2011) (quoting Miller v. Miller, 160 N.J. 408, 419 (1999)).

As a means of vitiating an agreement, our Supreme Court has stated unconscionability can be manifested in two ways. The first is procedural unconscionability, which involves a “variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process….” Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006), (quoting Sitogum Holdings, Inc., 352 N.J. Super. 555, 564 (Ch. Div. 2002)) cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). The second is substantive unconscionability, which is determined by applying the four factors identified by our Supreme Court in Rudbart v. North Jersey District Water Supply Commission, 127 N.J. 344, 356, cert. denied, 506 U.S. 871, 113 S. Ct. 203, 121 L. Ed. 2d 145 (1992). These factors are: “[1] the subject matter of the contract, [2] the parties’ relative bargaining positions, [3] the degree of economic compulsion motivating the `adhering’ party, and [4] the public interests affected by the contract.” Ibid.

As a general proposition, relief under Rule 4:50-1(f) is available only for “exceptional and compelling circumstances….” Baumann v. Marinaro, 95 N.J. 380, 393 (1984). It is to be granted “sparingly,” where “were it not applied, a grave injustice would occur.” Hous. Auth. of Morristown v. Little, 135 N.J. 274, 289 (1994).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Absent unconscionability, fraud, or overreaching in the negotiations of the settlement, no legal or equitable basis exists to reform the parties’ property settlement agreement originally appeared on NJ Family Issues on November 13, 2011.

“Settlement agreements in matrimonial matters, being `essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability’ in equity, provided they are fair and just.” Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 148-49 (1980). “[G]iven the inherent equitable powers of the Family Part, support orders . . . `may be revised and altered by the court from time to time as circumstances may require,’ including an order resulting from [a PSA].” Dolce, supra, 383 N.J. Super. at 18 (quoting N.J.S.A. 2A:34-23); see also Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.) (judicial review or modification of spousal support must be based on a showing of changed circumstances), certif. denied, 180 N.J. 354 (2004). “[A] PSA is `subject to amendment by the court when changed circumstances make its enforcement inequitable[.]‘” Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 535 (App. Div. 2004) (quoting Brawer v. Brawer, 329 N.J. Super. 273, 284 (App. Div.), certif. denied, 165 N.J. 138 (2000)); see also Lepis, supra, 83 N.J. at 148-49. However, the party challenging the validity and enforceability of a PSA must “show that its terms, in light of changed circumstances, are unfair and unjust.” Petersen, supra, 85 N.J. at 644. “[T]hat party must demonstrate that changed circumstances have substantially” impaired the ability to support himself or herself.” Lepis, supra, 83 N.J. at 157.

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The party challenging the validity and enforceability of a PSA must show that its terms, in light of changed circumstances, are unfair and unjust originally appeared on NJ Family Issues on November 10, 2011.

An anti-Lepis clause is a provision in a dissolution agreement in which the parties seek to prohibit subsequent judicial modification of support obligations based on changed circumstances. See Smith v. Smith, 261 N.J. Super. 198, 199 (Ch. Div. 1992) (in context of spousal support); Finckin v. Finckin, 240 N.J. Super. 204, 205 (Ch. Div. 1990) (same). An anti-Lepis clause is enforceable absent unforseeable and extreme circumstances that render the continued enforcement of the agreement unreasonable or unjust. See Morris v. Morris, 263 N.J. Super. 237, 241 (App. Div. 1993) (in context of spousal support). Cf. Ordukaya v. Brown, 357 N.J. Super. 231, 240-41 (App. Div. 2003) (holding that the right to child support belongs to the child or children, not to the custodial parent).

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Anti-Lepis clause originally appeared on NJ Family Issues on November 10, 2011.

“When considering an application to modify support, the moving party has the burden to make a prima facie showing of changed circumstances warranting relief . . . .” Dorfman v. Dorfman, 315 N.J. Super. 511, 515 (App. Div. 1998). “Whether circumstances have really changed so as to warrant modification requires a court to study the parties’ financial condition at the time of the divorce, as well as at the time of the application. Where the change is involuntary, all that is required is an analysis of the alterations in the parties’ financial circumstances.” Deegan v. Deegan, 254 N.J. Super. 350, 355 (App. Div. 1992). “Without knowledge of the financial status of both parties, the court will be unable to make an informed determination as to `what, in light of all the [circumstances] is equitable and fair.’” Lepis, supra, 83 N.J. at 157 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Whether circumstances have really changed so as to warrant modification of alimony requires a court to study the parties’ financial condition at the time of the divorce, as well as at the time of the application originally appeared on NJ Family Issues on November 10, 2011.