1. What is an anti-Lepis clause?

The seminal case of Lepis v. Lepis, 83 N.J. 139 (1980), which addressed the modification of alimony, resulted in the development of “anti-Lepis” clauses in property settlement agreements. These clauses were intended to bar the future modification of alimony. In many cases, parties will insert a clause in the property settlement agreement preventing modification of alimony, even if there is a potential change of circumstances in the future. These anti-Lepis clauses have been upheld by the courts. However, the courts will not permit the parties to bargain away the court’s equitable powers.

Many lawyers try to protect their clients by negotiating and including provisions in the property settlement agreement that restrict an ex-spouse’s ability to seek alimony in the future. These provisions are referred to as “anti-Lepis” clauses, and their enforceability generally rests on public policy grounds.

Any decent divorce lawyer will always try to insert an anti-Lepis clause into a property settlement agreement. However, the validity of an anti-Lepis clause is decided on a case-by-case basis. Before any person signs a property settlement agreement that has an anti-Lepis clause, the ramifications of the clause should be carefully explained and understood.

2. What are some examples of an anti-Lepis clause?

There are many different versions of anti-Lepis clauses. Below are some examples that I use in the property settlement agreements that I draft for my divorce cases.

Version one is a very basic anti-Lepis clause. This version may be used for a short-term marriage, where there were no children born of the marriage. Version two is a more involved clause. This version should be used for a medium length marriage, where there were children born of the marriage. Version three and four are the types of anti-Lepis clauses where the spouses are basically signing their lives away. These versions should be used for medium- to long-term marriages, where children were born of the marriage. These versions are very detailed and comprehensive. Detailed and comprehensive clauses are more likely to withstand judicial scrutiny in any future Lepis litigation.

Anti-Lepis Clause - Version One

The parties each agree to waive, relinquish and release, now and forever, any claim either may have against the other for alimony or any other form of spousal support.

Anti-Lepis Clause - Version Two
 
Both parties are employed full-time and are capable of supporting themselves. Neither party desires nor requires any financial support from the other. Husband and Wife both mutually release each other from any and all claims for alimony now and forever. Both husband and wife have expressly contemplated the possibility that the health of either or both of the parties may deteriorate, the economic status of either or both of the parties may deteriorate or improve or that there may be other changes in the condition of either or both of the parties. Nevertheless, the parties have expressly rejected these and any and all other conceivable changes as a basis for compelling the other to pay alimony, notwithstanding the provisions to the contrary as set forth in the applicable existing statutes or case law of the State of New Jersey.

Anti-Lepis Clause - Version Three

1. For the mutual promises and covenants herein contained, the parties hereby waive all past, present and future rights that each of them might otherwise have to require the other to provide alimony for his or her support and maintenance. The parties acknowledge and agree that they shall each be able to maintain a lifestyle comparable with that enjoyed during the marriage without the payment of alimony to him or her by the other.

2. It is agreed and understood between the parties that the alimony provisions herein shall not be modified by any Court of competent jurisdiction, and that both parties expressly understand and agree to the terms of the alimony paragraphs contained herein, and that there is no right of either party to obtain alimony now or in the future, and that both parties have been advised that in the event of a substantial change in circumstances or even circumstances which would be likely to render either party a public charge, that neither shall be entitled to any payment from the other, and that no Court shall, under any circumstance, modify the within alimony provisions.

3. The parties further acknowledge that the within alimony provisions shall not be modifiable and that these provisions are irrevocable even if any or all of the following occur, solely or in combination:

A. A Party’s loss of employment, either on a temporary or permanent basis;

B. A Party’s dramatic and substantial changes in income of whatever nature, scope or duration;

C. Inheritance of money by a party;

D. Inflation, regardless of the impact;

E. Wife’s or Husband’s loss of use of the property provided herein either through theft, embezzlement, frivolous use thereof, normal expenditures or any other cause.  

4. It is the specific intention of the parties to introduce concepts of collateral estoppel into this agreement to prevent the other from seeking modification of the alimony waiver.

Anti-Lepis Clause - Version Four

1. The Husband specifically waives any and all rights to alimony and spousal support both now and in the future and states that he is self-sufficient and capable of supporting himself. The Husband understands that this waiver of alimony and spousal support shall be permanent and irrevocable. This waiver of alimony on the part of the Husband is being made in consideration of the other elements of this Agreement and further in consideration of the Husband’s personal situation. In waiving alimony and spousal support, the Husband has considered the mandates of the case of Lepis v. Lepis, 83 N.J. 139 (1980), and waives the right pursuant to that case to make an application for alimony predicated upon a change in circumstances. 

2. The Wife specifically waives any and all rights to alimony and spousal support both now and in the future and states that she is self-sufficient and capable of supporting herself. The Wife understands that this waiver of alimony and spousal support shall be permanent and irrevocable. This waiver of alimony on the part of the Wife is being made in consideration of the other elements of this Agreement and further in consideration of the Wife’s personal situation. In waiving alimony and spousal support, the Wife has considered the mandates of the case of Lepis v. Lepis, 83 N.J. 139 (1980), and waives the right pursuant to that case to make an application for alimony predicated upon a change in circumstances.     

3. The parties do hereby accept the payments as set forth in this Agreement and/or the division of property as set forth in this Agreement, as full and complete satisfaction of all claims for support and maintenance and/or alimony that one may have against the other and it is further agreed that any divorce decree that shall hereafter be entered between the parties shall provide that no alimony or allowance to either of them shall be made and that no other provision therefore is justified.

4. The parties hereto further acknowledge and agree that the terms of this Agreement and the payments as set forth herein are in full and complete satisfaction of all claims for support, maintenance and/or alimony that one may have against the other. The parties agree and intend that the terms of this Agreement as the same relate to the mutual waiver of alimony shall be final. The parties have envisioned and considered any and all foreseeable and unforeseeable events occurring to either of them. The parties have specifically considered increases or decreases in the cost of living increases or decreases in their income, their loss of or inability to secure employment, any prospective changes of employment, the subsequent acquisition or loss of assets by either of them, the dissipation (whether negligent or not) of the assets received by each of them as and for equitable distribution in this matter, and any other event or events which may or do change the quality of their economic life.

5. The parties further acknowledge that they will be able to maintain a similar standard of living after divorce, that they lived during the marriage. The parties further agree that in no conceivable situation will they ever make an application to receive alimony or additional support based on a change of circumstances, that may or may not occur in the future.

3. Can divorcing spouses agree to make the alimony provisions in their property settlement agreement nonmodifiable?

The answer to this question is that each case must be reviewed on an individual basis. The development of New Jersey case law indicates that any application that tries to invalidate an anti-Lepis clause must be evaluated using a totality of the circumstances test. Moreover, the New Jersey courts have not taken a consistent position as to whether anti-Lepis clauses are valid and enforceable.

In the case of Finckin v. Finckin, 240 N.J. Super. 2004 (Ch. Div. 1990), the Chancery Division in Bergen County upheld an anti-Lepis clause that prohibited alimony modification. The parties placed a very detailed anti-Lepis clause in their property settlement agreement. The agreement provided, in pertinent part, as follows:

“The parties acknowledge that the rationale in the case of Lepis v. Lepis, 83 N.J. 139 (1980), has been explained to them in the sense that a substantial change of circumstances would permit either party to make an application to a court of competent jurisdiction to modify the within Agreement. It is the intention of the parties hereto, that the rational of the Lepis case not  apply to any present or future interpretation of the reasonableness of this Agreement, for they intend and acknowledge that this agreement shall express their rights and obligations for now and for all time, despite substantial change in their monetary circumstances.”

The wife filed a motion that sought to compel her husband to pay for one half of college expenses as agreed in the property settlement agreement. Meanwhile, the husband filed a cross-motion for relief by way of a downward modification in his obligation to pay these expenses due to his decreased income. The husband claimed that his earnings were substantially less than at the time of the divorce because of a health problem that prevented him from doing any physical labor.

The court rejected the husband’s Lepis motion. The court found that the parties’ agreement was clear and unequivocal, and that the anti-Lepis clause was enforceable. The court further found that the parties’ rights and obligations were carefully explained to them at the time the marital agreement was entered. The court concluded that the parties made a knowing and intelligent waiver of their Lepis rights. Accordingly, the original divorce judgment was upheld.

Another interesting case is Smith v. Smith, 261 N.J. Super. 198 (Ch. Div. 1992). Here, the family court held that an anti-Lepis clause that prohibited the modification of a property settlement agreement regardless of changed circumstances was void under the laws and public policy of New Jersey. In the Smith case, the former wife sought to have her alimony payments extended beyond the six-year period as specified in the judgment of divorce. The specific Lepis clause that was part of the judgment of divorce was as follows: “The parties contemplate termination of alimony in no more than six years, regardless of changed circumstances.” 

The Smith court held that the blanket non-modifiability provisions were contrary to public policy because they circumvented the court’s duty to make adjustments based on changed circumstances. The Smith court further held that an anti-Lepis clause that seeks to preclude the exercise of the court’s equitable responsibility to review, and if warranted, to modify support obligations in response to changed circumstances, is contrary to the public policy of New Jersey. The court further found that any attempts to bar a court from reviewing the fairness of a property settlement agreement have been consistently rejected by New Jersey case law. 

Another interesting case is Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993). In this case, a former husband sought to reduce his alimony obligation pursuant to an anti-Lepis clause that read as follows: “The parties hereby waive their rights for modification based upon changed circumstances as set forth in the case of Lepis v. Lepis, 83 N.J. 139 (1980).”

The Morris case was eventually appealed. The Appellate Division held that it agreed with both the Smith and Finckin decisions. The New Jersey Supreme Court held that the parties in a divorce proceeding can’t bargain away the family court’s equitable jurisdiction. However, the Supreme Court did hold that the parties can, with full knowledge of all present and reasonable foreseeable future circumstances, bargain for a fixed payment or establish the criteria for the payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement.

4. What is a summary of the status of New Jersey case law regarding the enforceability of anti-Lepis clauses?

In the case of Smith v. Smith, 261 N.J. (Ch. Div. 1992), the court held that an anti-Lepis clause that seeks to bar the exercise of the court’s equitable responsibly to review, and if warranted, modify support obligations in response to changed circumstances, is contrary to public policy.

However, in the case of Finckin v. Finckin, 240 N.J. Super. 204 (Ch. Div. 1990), the court held that the grounds of public policy did not prohibit the use of an anti-Lepis clause.

Finally, in the case of Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993), the Appellate Division concluded that to some extent it agreed with both the Smith and the Finckin decisions. The court held that a review of any case with anti-Lepis issues would depend on the totality of the circumstances of the individual case. The Morris court further held that it would enforce the parties’ own individual anti-Lepis clause in their property settlement agreement, which rejected the change of circumstance guidelines of Lepis. 
   

5. How will New Jersey courts review future cases that involve the enforceability of anti-Lepis clauses?

After the Morris case, it is clear that a reviewing court ruling on the enforceability of an anti-Lepis provision will have to review the fairness of the overall settlement plan. The bottom line is that even if there are anti-Lepis provisions in a property settlement agreement, relief can still be granted if the case presents extreme circumstances. See Savarese v. Corcoran, 311 N.J. Super. 240 (Ch. Div. 1997). Given the development of the case law, the very notion of an anti-Lepis clause is probably now outdated law.

In summary, to ensure that an anti-Lepis clause will withstand judicial scrutiny, it must be drafted with an attention to detail and must also be comprehensive. Anti-modification provisions must also fully explain in detail that the parties have been fully apprised of their rights under the seminal Lepis case. This clause must also delineate that the parties have made certain arrangements which account for the risk of changed circumstances in the future. The clause should indicate that the parties have made tradeoffs which do not offend public policy. Finally, the parties should voluntarily agree that their settlement will not be modifiable, after receiving due counsel, full disclosure, and careful deliberation.

The enforceability of an anti-Lepis clause will be decided on a case-by-case basis. In the world of family law, there is no black and white ruling to every Lepis motion. Therefore, if a matrimonial litigant has a strong case to reopen alimony issues in a judgment of divorce, then she should not hesitate to explore Lepis litigation. If a divorced wife suffers serious medical problems after the divorce, the situation could certainly constitute a sufficient “change of circumstances” to void an anti-Lepis clause.

There are many additional types of circumstances that may convince a court to void an anti-Lepis clause. The disability and the illness of a spouse can constitute a change of circumstances. Adler v. Adler, 229 N.J. Super. 496 (App. Div. 1988).

In some cases one spouse may receive a large inheritance. There is case law that supports the notion that receiving a significant inheritance may constitute a Lepis change of circumstances. The case of Weitzman v. Weitzman, 228 N.J. Super. 346 (App. Div. 1988), held that a supporting spouse’s post-judgment inheritance was available for support purposes, even where the parties’ original financial circumstances would have prevented such payments.

The increased/decreased earnings of a spouse may also constitute a “change of circumstances.” Avery v. Avery, 209 N.J. Super. 155 (App. Div. 1986); Harrington v. Harrington, 281 N.J. Super. 39 (App. Div. 1995); Connor v. Connor, 254 N.J. Super. 591 (App. Div. 1992).

6. What are my chances of success if I file a motion that seeks to void an anti-Lepis clause in my property settlement agreement?

The enforceability of an anti-Lepis clause will be decided on a case-by-case basis. Any person who wants to reopen a divorce case and seek additional alimony should seek the advice of an experienced matrimonial lawyer and must exhaustively document his or her case.

For example, if an ex-spouse has a medical condition that hurts her ability to work, then any medical evaluations and reports must be attached to the Lepis motion. If an ex-spouse has lost her job, then any employment termination papers must be attached to the motion. Moreover, any documentation that proves that the ex-spouse has tried to find suitable replacement employment should be attached to the motion as well. A detailed record of the ex-spouse’s job search should be made a part of the appendix to the Lepis motion. All emails that verify that the ex-spouse has diligently sought to obtain similar suitable employment should be part of the motion.

A matrimonial litigant must provide detailed documentation to the court to verify any medical condition, job loss, or inability to find suitable employment. If a matrimonial litigant fails to provide adequate documentation, the chances of a successful outcome are slim to none.

The chances of success in voiding an anti-Lepis clause depend on the strength of the case, the individual judge assigned to review the case, and the quality of the Lepis motion legal papers. Many members of the public mistakenly believe that if their lawyer simply presents smart and clever arguments to the court, the case is won. However, Lepis cases are won or lost on the quality of the motion papers. Even if your lawyer makes clever arguments to the court, you will lose your Lepis case if your motion papers are incomplete or poorly drafted. The quality of the paperwork is the most important part of any Lepis application.

Another important factor is the individual judge assigned to your case. Some judges will strictly interpret an anti-Lepis clause and look no further into the family’s personal situation. Other judges will refuse to carefully analyze the prevalent case law, and simply deny the motion. Alternatively, some judges will carefully scrutinize your case if your legal papers are persuasive and well-documented. All judges have different views on important legal issues in the area of family law. In many motions that attempt to invalidate an anti-Lepis clause, your “luck of the draw” as to which judge you are assigned is of the utmost importance.

If an ex-husband quite remarkably doubles his income after the divorce, then many judges will consider this factor as a sufficient “change of circumstances” to void an anti-Lepis clause. In my experience, some ex-husbands try to keep their income artificially low until their divorce proceedings are finalized, as the amount of alimony and child support is calculated based on current income. Some will even turn down promotions or decline better job offers during the rocky parts of the marriage leading up to the divorce. Once the divorce is over, these individuals may quickly accept higher paying employment positions. As stated above, many courts will consider these scenarios as an appropriate “change of circumstances” to void an anti-Lepis clause.

Moreover, a job loss by the ex-wife may also constitute a sufficient “change of circumstances” to enable her to void an oppressive anti-Lepis clause. In many cases, a disadvantaged ex-wife may be phased out of a long-term job and need to be retrained for a new job and field.

Another important factor in any case that tries to void an anti-Lepis clause is whether the ex-wife is still the primary caretaker of minor children born of the marriage. If an ex-wife has minor children born of the marriage, then many courts will view any future alimony payments as additional support to be used to raise the children. The bottom line is that if an ex-wife receives alimony, this money is also used to support the children. If an ex-wife has minor children, and if she truly has suffered hard times, many courts will be inclined to void an anti-Lepis clause.

Finally, another ground that can be used is an allegation of ineffective assistance of counsel. The range of adequate legal services that a matrimonial litigant receives in a divorce case varies considerably; all lawyers are not created equal. Sometimes divorce cases get botched up. Family court lawyers do not intentionally try to give a client bad legal advice, or to provide inadequate legal representation. However, sometimes lawyers get overwhelmed with their workload. Moreover, sometimes a lawyer simply will not “hit it off” with their client. These factors may impact the final outcome of the case and can perhaps be used to argue that an anti-Lepis clause should be voided.