If you’ve gone through a divorce in New Jersey and the court has ordered alimony in your case, you may be wondering if it’s possible to change (“modify”) the order. If you can show that circumstances have changed since the original order, a court might increase, decrease or end (“terminate”) payments.
Modification by Type of Alimony
Modifiability depends on the type of alimony, and whether or not the original order (or your separation agreement) contained any conditions limiting modification. If the alimony is modifiable and the court is convinced that circumstances have changed, it will hold a full hearing on need and ability to pay, taking into account all the relevant circumstances just as in an original alimony decision.
New Jersey courts can award five types of alimony – all of which will end automatically if either spouse dies.
Temporary alimony (“alimony pendente lite”). This is paid during a divorce proceeding and stays in effect only until the divorce is final. It’s always modifiable based on a change of circumstances.
Permanent alimony. Permanent support helps a lower-earning spouse maintain the standard of living established during a long-term marriage. It ends automatically if the supported spouse remarries, and it’s always modifiable based on a change of circumstances.
Durational alimony. Just as its name suggests, this has a predetermined ending date. It serves the same purpose as permanent alimony, but is used after a shorter marriage and ends if the supported spouse remarries. Durational support is modifiable based on a change in circumstances. Typically, courts will only modify the amount, not the duration. A court may also revise durational and rehabilitative support (see below) if a specific condition fails to happen; for example, if the supported spouse agrees to complete a particular educational program and then drops out before finishing.
Rehabilitative alimony. This has a set term and is intended to help a dependent spouse complete training or education necessary to become self-supporting. Rehabilitative alimony is modifiable under some conditions, and a court can even change it to durational or permanent alimony at a later date.
Reimbursement alimony. This requires one spouse to pay the other back for any financial contributions related to higher education or advanced job training; and is not ordinarily modifiable, since it’s considered payment of a debt.
For more information on alimony in New Jersey, see Understanding and Calculating Alimony in New Jersey, by Yan Wen Fei.
Change in Circumstances
Changes in circumstances must be substantial and on-going. This means that ordinarily a court won’t modify support unless the change has been in effect for at least several months and is likely to continue indefinitely. Some circumstances that might justify a modification include:
- an increase in either spouse’s income
- an involuntary decrease in either spouse’s income
- an increase in the supported spouse’s costs of living
- an increase in the financial obligations of the paying spouse, or
- cohabitation (living together) with a new partner.
Increase in Income
A significant increase in the supported spouse’s income might call for a downward modification while a significant increase in the paying spouse’s income might call for an upward modification. In either case, the primary issue will be how much alimony the supported spouse needs.
Even with the help of alimony payments, a supported or “dependent” spouse usually has to reduce expenses after divorce. If the paying spouse’s income increases after divorce, the dependent spouse may be entitled to additional support, but only to the extent necessary to meet the marital standard of living.
Similarly, if a supported spouse’s income goes up, but not enough to meet the marital standard of living, a judge won’t reduce payments. Determining the marital standard of living is usually done as part of the original divorce case; if it wasn’t, a full hearing on the issue may be necessary as part of the modification decision.
Decrease in Income
A paying spouse’s decrease in income could justify a reduction of support, while a supported spouse’s decrease in income (or failure to become fully employed within a certain period of time) could justify an increase.
The key question will be whether or not the decrease in income happened in “good faith”–meaning it wasn't voluntary or for the purpose of avoiding an obligation to pay alimony or become self-supporting. The following are common situations involving a decrease in income.
- Job Loss. A paying spouse can’t just quit a job or switch to a lower paying career to avoid alimony, and a supported spouse must make an effort to become self-supporting before a court will consider an increase. A spouse who’s laid off from a job, or fails to become fully employed, must file an updated Case Information Statement (CIS) with supporting documents showing a long-term decrease in actual and anticipated income and submit proof of efforts to find work, such as an updated resume, and a log showing job contacts, interviews, and other job-hunting activities.
- Disability. If the decrease in income is due to an illness or disability that developed after the original alimony order, a court will ordinarily require medical records and either a formal determination of disability (such as a social security or workers’ compensation decision) or a vocational evaluator's opinion supporting the inability to work.
- Retirement. Retirement at the age of 65 or older is generally considered a reasonable basis to reduce support. It’s much harder to get a modification based on retirement before age 65; however, if the paying spouse shows the decision to retire early was reasonable, and the benefits of early retirement outweigh any detriment to the supported spouse, a court may grant the request. Such requests pose special challenges as the paying spouse must actually retire before a court will hear the case.
Increase in Supported Spouse’s Costs of Living
Costs of living tend to increase over time due to inflation and other factors. In some cases alimony orders include a built-in “COLA” (cost of living adjustment). If there was no COLA, or if unanticipated factors have led the supported spouse’s cost of living to increase substantially, a modification could be appropriate.
Increase in Paying Spouses Financial Obligations
An increase in a paying spouse’s financial obligations can only rarely be grounds for modification. A court won’t consider any obligation that the payer takes on voluntarily, because the pre-existing alimony obligation takes priority. For example, a decision to remarry is voluntary and not a basis for modification. In some cases, the birth or legal adoption of a child might indirectly affect alimony payments, because it will justify a recalculation of child support.
Cohabitation of the Supported Spouse
In New Jersey, if an alimony recipient moves in with a new romantic partner, the court won’t automatically terminate support, but will consider a modification. The court will first look at the relationship to determine how similar it is to a marriage, taking into account the couple’s living arrangements and the degree to which they’re sharing expenses, bank accounts, household responsibilities, and social activities. The relationship must be serious and long-lasting. While no specific duration is required, a court isn’t likely to modify alimony based on a relationship of only a few months.
Even when a court finds a cohabitation relationship is similar to a marriage, it won’t modify support unless the cohabitation has a financial effect on the supported spouse’s needs. For example, if the supported spouse suddenly has excess income (and a lower need for alimony) because the live-in partner is covering household expenses, the court is likely to reduce support. A court can also order a reduction if the supported spouse is using alimony payments to support a new partner.