The purpose of an alimony award is “to assist the supported spouse in achieving a lifestyle that is reasonably comparable” to the marital standard of living. Crews v. Crews, 164 N.J. 11, 16 (2000). The court has the power to modify an alimony award based on changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980); see also N.J.S.A. 2A:34-23 (providing that support orders “may be revised and altered by the court from time to time as circumstances may require”). Since the goal of an alimony award is to enable the dependent spouse to maintain the standard of living the parties enjoyed while married, that standard serves as the “touchstone” for adjudicating motions to modify the alimony award. Glass v. Glass, 366 N.J. Super. 357, 370-71 (App. Div.), certif. denied, 180 N.J. 354 (2004).

The support award will be decreased to the extent it is unnecessary to maintain the standard of living of the dependent spouse. Lepis v. Lepis, supra, 83 N.J. at 152-53. Thus, a significant improvement in the financial circumstances of the dependent spouse is a changed circumstance warranting reconsideration of a support award. Glass v. Glass, supra, 366 N.J. Super. at 371 (stating that “‘a significant change for the better in the circumstances of the dependent spouse,’ [] may obviate the need for continued support” (citation omitted)). However, the change must be “significant” and not a “modest” increase in income. Id. at 379.

The burden is on the litigant seeking a modification of the support award to first make a prima facie showing of changed circumstances. Crews v. Crews, supra, 164 N.J. at 28. Once a prima facie showing has been made, the court may order any necessary discovery and conduct a plenary hearing to resolve any questions of fact. Lepis v. Lepis, supra, 83 N.J. at 157-59. Whether to modify an alimony award based on changed circumstances rests in the sound discretion of the family court. Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).

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The support award will be decreased to the extent it is unnecessary to maintain the standard of living of the dependent spouse originally appeared on NJ Family Issues on November 5, 2009.

Support orders are subject to increase or reduction when the party seeking modification shows that the relief is warranted. Lepis, supra, 83 N.J. at 157. The changes relevant are those that substantially affect need and ability to pay. Id. at 151, 155. Circumstances such as income, employment, disability with impact on earning capacity or living expenses, changes in the children’s needs and emancipation of a child are relevant. Id. at 151-52.

One who seeks modification can establish a sufficient change based upon circumstances that have an impact on either party’s need and ability to pay or “a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review.” Stamberg v. Stamberg, 302 N.J. Super. 35, 42 (App. Div. 1997). ^[1]

A temporary change is generally deemed inadequate to warrant modification of support. Lepis, supra, 83 N.J. at 151. Nonetheless, there is limited precedent for suspension of support for a defined period related to a specific circumstance warranting a suspension. For example, the court has approved such measures in cases where the payor’s ability to meet the support obligation is due to a term of incarceration or the payee’s need for support is diminished by his or her incarceration or a period of cohabitation warranting retroactive modification for that period. Calbi v. Calbi, 396 N.J. Super. 532, 543-44 (App. Div. 2007); Kuron v. Hamilton, 331 N.J. Super. 561, 572 (App. Div. 2000); Garlinger v. Garlinger, 137 N.J. Super. 56, 65 (App. Div. 1975).

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

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1. In Stamberg, the court suggested measures judges should employ when submissions on a motion for modification indicate a need for discovery of the other party’s income or assets or competent evidence to support a claim. 302 N.J. Super. at 42. There are other options as well. See Rule 5:5-4(a) (specifying documentation required for motion to modify support).

One who seeks modification of support can establish a sufficient change based upon circumstances that have an impact on either party’s need and ability to pay or a combination of changes on the part of both parties which together have altered the status quo which existed at the time of the entry of the support order under review originally appeared on NJ Family Issues on September 21, 2009.

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Alimony and support orders define only the present obligations of the former spouses, those duties are always subject to review and modification on a showing of ‘changed circumstances.’ Lepis v. Lepis, 83 N.J. 139, 146 (1980). Importantly, consensual agreements and judicial decrees are reviewed under the same standard of changed circumstances. Id. at 148. Thus, “the extent of the change in circumstances, whether urged by plaintiff or defendant, shall be the same, regardless of whether the support payments being questioned were determined consensually or by judicial decree.” Smith v. Smith, 72 N.J. 350, 360 (1977).

Where the PSA is “silent on the issue of cohabitation and its impact on spousal support,” the court must “decide the issue based on decisional law rather than by construing the settlement agreement.” Ozolins v. Ozolins, 308 N.J. Super. 243, 247-48 (App. Div. 1998).

An application for modification of a PSA is governed by the same standard as the original judgment of divorce. Miller v. Miller, 160 N.J. 408, 420 (1999). That is, “[w]hen support of an economically dependent spouse is at issue, the general considerations are the dependent spouse’s needs, that spouse’s ability to contribute to the fulfillment of those needs, and the supporting spouse’s ability to maintain the dependent spouse at the former standard.” Lepis, supra, 83 N.J. at 152.

“[O]ne of the procedural prerequisites to discovery and a hearing in a modification proceeding under Lepis is an initial showing of changed circumstances.” Gayet v. Gayet, 92 N.J. 149, 155 (1983). Cohabitation constitutes such changed circumstances. Ibid.; see also Ozolins, supra, 308 N.J. Super. at 248 (citing Lepis, supra, 83 N.J. at 151) (“[C]ohabitation by a supported spouse may constitute changed circumstances justifying discovery and an evidentiary hearing.”). The test for whether cohabitation warrants modification of the alimony award is based on economic needs. Gayet, supra, 92 N.J. at 155.

A decrease in alimony is appropriate “when circumstances render all or a portion of support received unnecessary for maintaining” the “standard of living reflected in the original decree or agreement.” Lepis, supra, 83 N.J. at 153. Alimony modification is appropriate where “‘(1) the [cohabitant] contributes to the dependent spouse’s support, or (2) the [cohabitant] resides in the dependent spouse’s home without contributing anything toward the household expenses.’” Ozolins, supra, 308 N.J. Super. at 248 (quoting Gayet, supra, 92 N.J. at 153).

Significantly, “a showing of cohabitation creates a rebuttable presumption of changed circumstances shifting the burden to the dependent spouse to show that there is no actual economic benefit to the spouse or the cohabitant.” Id. at 245.

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Consensual agreements and judicial decrees as to spousal support are reviewed under the same standard of changed circumstances originally appeared on NJ Family Issues on August 6, 2009.

Alimony and child support orders are subject to modification upon a showing of “changed circumstances.” Lepis v. Lepis, 83 N.J. 139, 152 (1980). However, the party seeking such modification bears the burden of demonstrating such changed circumstances, id. at 157, and significantly, a decrease in income resulting from retirement does not necessarily justify a modification of support. Lissner v. Marburger, 394 N.J. Super. 393, 399 (Ch. Div. 2007).

The issue of voluntary retirement as constituting a change in circumstances warranting relief from support obligations was addressed in Silvan v. Sylvan, 267 N.J. Super. 578 (App. Div. 1993)(concluding that a good faith retirement at age 65 may warrant a finding of changed circumstances); and Deegan v. Deegan, 254 N.J. Super. 350 (App. Div. 1992 (establishing the standards to be applied when a party asserts an early retirement as changed circumstances warranting termination of spousal support). See also, Lissner, supra, 394 N.J. Super. at 403-04 (distinguishing between termination of alimony and child support where the basis of changed circumstances was a voluntary early retirement).

In Silvan, the court established a series of factors to be considered when a party retires at age 65 and subsists on social security benefits, relying on these facts to assert “changed circumstances” warranting relief. The court said, in part:

There are a variety of factors which should be considered in analyzing whether such changed circumstances do, in fact, exist as would justify a modification of alimony. A court may consider, for instance, the age gap between the parties; whether at the time of the initial alimony award any attention was given by the parties to the possibility of future retirement; whether the particular retirement was mandatory or voluntary; whether the particular retirement occurred earlier than might have been anticipated at the time alimony was awarded; and the financial impact of that retirement upon the respective financial positions of the parties. It should also assess the motivation which led to the decision to retire, i.e., was it reasonable under all the circumstances or motivated primarily by a desire to reduce the alimony of a former spouse. . . .

[Silvan, supra, 267 N.J. Super. 578 at 581.]

These factors were “meant to be illustrative, not exhaustive.” Ibid. Ultimately, the relevant considerations will depend on the circumstances presented in each particular case. Deegan, supra, 254 N.J. Super. at 358.

However, although age sixty-five is the foreseeable retirement age, “[i]t is reasonable to conclude that a person who decides to become a parent late in life voluntarily takes on the responsibility of working and saving for that child beyond the age that would otherwise be expected.” Lissner, supra, 394 N.J. Super. at 403.

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Although age sixty-five is the foreseeable retirement age, it is reasonable to conclude that a person who decides to become a parent late in life voluntarily takes on the responsibility of working and saving for that child beyond the age that would otherwise be expected originally appeared on NJ Family Issues on September 23, 2008.

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The standard for modification of spousal and child support is set by Lepis v. Lepis, 83 N.J. 139 (1980) and subsequent case law. The standard requires an unanticipated change in circumstances, not a party’s voluntary decision.

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The standard for modification of spousal and child support is an unanticipated change in circumstances, not a party’s voluntary decision originally appeared on NJ Family Issues on September 5, 2008.