1. I have been paying permanent alimony forever. Will it ever be that “enough is enough”?
Alimony is among the most emotional issues in the field of family law. Under the current status of the law, alimony can be reduced or terminated only if there is a Lepis “change of circumstances.” Thus, one of the foundations of family law in New Jersey is that there must be changed circumstances to justify an alimony modification. There are many cases where a client will not satisfy the Lepis requirements to justify a change in alimony payments. What can a client do if he can’t satisfy the Lepis requirements? He can always file an application to reduce or terminate alimony based on the principles of equity and fairness. If some type of life event(s) should make the enforcement of a property settlement agreement neither fair nor equitable, then a strong argument can be made that it is the responsibility of the court to review the order.
2. Is there legal authority to substantiate the argument that a court has a judicial responsibility to monitor the status of spousal support agreements?
In the case of Petersen v. Petersen, 85 N.J. 638 (1981), the New Jersey Supreme Court held that a property settlement agreement may only be enforced when it is fair and equitable. Moreover, the Peterson court noted that spousal support agreements are subject to “judicial supervision” and that the courts always have control over whether to enforce or modify an agreement. The court further noted that the supervisory role is to ensure that only fair agreements are enforced.
3. How does a person challenge a spousal support agreement when no Lepis “change of circumstances” has occurred?
If a person cannot show a Lepis change of circumstances, then he must allege that the spousal support agreement is no longer fair and equitable. Moreover, the applicant must argue that the court has the statutory and inherent power to revise and alter such agreements “as the circumstances may require.”
4. Does permanent alimony last forever?
Many property settlement agreements contain permanent alimony provisions. A key issue is whether an agreement that contains a permanent alimony provision must, under all of the circumstances, be construed as an irrevocable permanent obligation. There are many cases where a permanent alimony agreement was reached prior to the enactment of the limited duration alimony statute (N.J.S.A. 2A:34-23). Prior to September 13, 1999, only permanent and rehabilitative alimony were recognized by statute. Before that time, parties or courts only had the legal options of permanent alimony or no alimony. Therefore, prior to September 13, 1999, the courts awarded permanent alimony for the majority of the break-ups of mid-length marriages. A mid-length marriage is basically construed to be a marriage of ten to fifteen years. If these cases were tried today, permanent alimony would be reduced to limited duration alimony in about half of them.
The question then becomes whether, for marriages of a substantial period of time (for example, twenty, fifteen, or twelve years), it is still fair and equitable for an award to continue, given that the initial award was “permanent.” There are cases prior to the limited duration alimony statute that involved relatively young people; these cases created alimony obligations for far longer periods than the likely result under current law. An argument can be made that a change in the law constitutes a “change of circumstances.” Therefore, I submit that the enactment of the statute allowing for limited duration alimony may constitute a “change of circumstances” in many alimony cases.
There is also case law to support this legal theory. In Castiglioni v. Castiglioni, 192 N.J. Super. 594 (Ch. Div. 1984), the court modified an agreement based on changes in the law. The court held that if it did not modify the subject property settlement agreement, then the result would be enforcing an agreement that was neither fair nor equitable. In the case of Edgerton v. Edgerton, 203 N.J. Super. 160 (App. Div. 1985), the court held that it has the power to have supervisory control over marital agreements. Moreover, the Edgerton court held that marital agreements are only enforceable if they are fair and equitable. Id. at 171. The Edgerton court further found that the change in the law (adoption of the statute immunizing gifts and inheritances) rendered the agreement neither fair nor equitable. The court held that it would be inequitable to compel the sharing of assets that were not distributable by virtue of the subsequent change in the law.
