What is the standard to modify alimony?
Alimony can always be modified upon a showing of a "change of circumstances." The party who is seeking a modification of alimony bears the burden of proving that there is a "change of circumstances." The party must show how the changed circumstances have sufficiently impaired her ability to earn a reasonable living.
If a spouse remarries does this terminate his obligation to pay alimony?
If the spouse who pays alimony remarries, then this remarriage does not terminate his alimony obligation. If the payor spouse remarries, and he claims that he can no longer support his former spouse, then this factor alone is not a sufficient change of circumstances to just a decrease in alimony.
If a spouse receiving alimony remarries does this terminate her right to receive alimony?
If the spouse receiving alimony remarries, then any permanent alimony award or term alimony will be terminated regardless of the parties' financial circumstances. The rationale for this is because the supported spouse has entered into a new marital partnership, and the former spouse is not required to financially support this new partnership. If the supported spouse's new marriage fails, then she can't later petition the court to reinstate the first husband's alimony obligation.
Can a spouse bankrupt his alimony obligations?
If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree are not dischargeable. In short, a husband can't wipe off an alimony obligation in a bankruptcy case.
Can a spouse file a motion for an increase in alimony?
The courts will examine a spouse's ability to pay alimony and the payee spouse's need for alimony. Sometimes, a supported spouse will file an application for an increase of alimony. The grounds for the motion is that the supported spouse needs additional income to maintain a decent lifestyle. If the payee spouse is not receiving sufficient alimony to live, then a post-judgment increase in the payor's spouse's income may justify an increase in alimony. The party seeking to have alimony increased bears the burden of proof to demonstrate a change of circumstance. The courts will also examine the parties' historical standard of living during the marriage.
Can a spouse file a motion for a decrease in alimony?
If a payor's income decreases then he can file a motion to ask the court to decrease or terminate his alimony obligation. The payor spouse must demonstrate that the decrease in income and/or salary was bona fide, in good faith, and not reduced in order to avoid and limit alimony. If a spouse is unemployed or underemployed then the court may impute income to him. The court may also look a person's unearned income and assets to ruling on any alimony modification motions.
If a spouse retires does this constitute a "change in circumstances" to justify a termination of alimony?
If a party has a good faith retirement at the age of 65 then this may constitute a change of circumstances to justify a modification of alimony. The court will also consider several other factors such as; the age of the parties; how the pensions and retirement assets were divided during the marriage; whether the retirement was reasonable; and was the retirement motivated to reduce alimony. Our New Jersey courts have held that when a person retires at the age of 65, he is entitled to a plenary hearing to reduce alimony based on a "change of circumstances."
If a payor spouse retires before the age of 65, then he is subjected to a more stringent standard to have alimony terminated. The court will then balance the benefits to the payor spouse against the disadvantage to the payee spouse. Only if the advantage to the retiring spouse substantially outweighs the disadvantage to the payee spouse will the court view the retirement as a legitimate change of circumstances which would justify a modification of alimony.
Some other factors that a court considers when it rules on terminate alimony if there is a retirement are: the age and health of the party, his or her motives in retiring; his or her ability to pay support; and the ability of the other spouse to provide for herself.
Can alimony be terminated if the supported spouse cohabitates with another man?
In some cases if a supported spouse cohabitates with another man then this may constitute a change of circumstances to justify a change of circumstances. If the supported spouse lives with another man, then the court may reduce alimony. However, cohabitation alone is not enough to reduce alimony. The cohabitation must also be coupled with some economic consequences in order to modify alimony.
The courts use the economic contribution test to determine whether an alimony award to a dependent spouse should be reduced. This test looks to see if the cohabitation is similar to a permanent house situation or a marital like relationship. If the dependent spouse' new boyfriend or girlfriend reduces the dependent spouse financial needs, then alimony may be reduced. Moreover, if the dependent spouse is using alimony to support the live-in boyfriend, then the payor spouse has very good grounds to reduce alimony.
The payor spouse has the burden to prove that there has been a prima facie showing of cohabitation. The fact of cohabitation triggers a finding of a change of circumstances. Thereafter, the court will set down a hearing, and permit the parties to conduct limited discovery. The payee spouse then has the burden to prove to the court that there is no economic consequence from the fact that she is living with another man.
In many property settlement agreements there are some very specific clauses as to alimony termination if the woman lives with another man. The New Jersey courts have enforced property settlement agreements that provide for a termination of alimony regardless of economic circumstances if the payee spouse lives with another man. The courts however will not uphold a property settlement agreement which attempts to control the former wife's social activities through the suspension of alimony. If the property settlement agreement places unfair conditions on a former wife that has nothing to do with her financial status, then this agreement will be declared void.
If a person receives an inheritance does this affect alimony in any way?
Although an inheritance is not subject to equitable distribution, any income derived from any inheritance can be used to determine any alimony award. Moreover, if a person receives an inheritance this is also a factor to analyze any motion to reduce or increase alimony.
Can a person insert an anti-modification of alimony clause in the property settlement agreement?
In many cases, the parties will insert a clause in the property settlement agreement that would prevent any modification of alimony even if there is a potential chance of circumstances in the future. This type of clause is known as an Anti-Lepis clause. These types of clause have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.
How does alimony affect the calculation of child support?
When the court calculates child support it will deduct any alimony payments from the payor's spouse's income. Moreover, the alimony will be included as income to the payee spouse. In summary, a high alimony payment may result in a reduction in child support. Alimony is deductible by the payor spouse, and it must be declared as income to the payee spouse.
Can alimony be extended?
In most cases no. However, some property settlement agreements provide that a spouse may be entitled to alimony after a certain number of years. A dependent spouse will have to file an application for an increase in alimony. The dependent spouse will have to prove a "change of circumstances" to justify an extension of alimony. The courts analyze these applications on a case by case basis. The court will make this determination based on the payor's ability to pay, both parties' respective income's, and the dependent spouses needs.
Additionally, rehabilitative alimony can be extended beyond the expiration date as specified in the property settlement agreement. The standard once again is whether there has been a "change of circumstances."
If a spouse commits adultery does this increase alimony?
The standard answer is no. However, from practical point of view marital fault or infidelity certainly does affect alimony. A court must examine the proofs and determine that the amount of alimony is "fit, reasonable and just." Moreover, alimony can't be used to punish a payor spouse, or be used as an award to a payee spouse.
It must be emphasized that the judges are human. If one spouse commits adultery, and if he/she emotionally destroy their spouse, it is very hard for the judge not to be sympathetic. Therefore, in my opinion, marital fault certainly is a very relevant factor that a court considers in making an alimony award. However, the court will not admit it, or list it as a factor to substantiate their decision.
Can alimony be awarded during a domestic violence hearing?
The start of many divorces occur when a party files a domestic violence complaint. Quite often, in a DV case, the dependent spouse will also request that the court issue an temporary alimony award. A court in a DV case has the authority to make a temporary alimony award. The rationale for this rule is that the courts do not want the dependent spouse and the children to starve.
Can a person limit their exposure to alimony by having an antenuptial agreement?
An antenuptial agreement is also known as a premarital agreement. A premarital agreement is considered valid provided that there has been full disclosure of each party's financial status. If there is a finding of fraud, duress, or overreaching of any party, then the court will not enforce the premarital agreement. In some premarital agreements, the parties may try to limit alimony in the future. If a premarital agreement is contested, then the court will examine if a denial of alimony to a dependent spouse is equitable and just based on a totality of the circumstances of the case.
