Ending or reducing alimony in New Jersey
Reducing or ending an alimony obligation in New Jersey is a complex endeavor. The above-video, and the transcript of it below, cover the basic standard used to reduce or eliminate alimony, and goes through the four most basic scenarios in which this is used: when an ex-partner remarries; when he or she co-habits with another; when the payor spouse has a reduction in his income; and when the payor spouse retires.
Hello, this video is going to be about reducing or eliminating an alimony obligation in New Jersey. Now if you’ve seen my other videos, you know that I already did one providing a basic overview of alimony law. If you haven’t watched that one, I recommend you go see that first because this is basically part two. How do you change an alimony obligation in New Jersey once it’s already in place?
And the short answer is that it can be done, but you have to show changed circumstances. And the best way to understand what that means is to look at the four most common circumstances where people want their alimony reduced or eliminated: remarriage by the person receiving alimony, cohabitation by the recipient, a loss or reduction of income by the payor and retirement by the payor. Those are the four most common. And let’s do remarriage first because that’s the quickest and easiest.
Okay, so what happens if you’re paying alimony and your ex gets remarried? Well, congratulations. You got lucky. You no longer have to pay alimony. Good for you. Generally speaking, if the party receiving alimony gets remarried, alimony ends as of the date of the marriage. The only exceptions for that is if the alimony was in any way rehabilitative or reimbursement alimony. If you saw the first video, you’ll remember those are the two rarest forms of alimony. Rehabilitative alimony is where you’re just trying to get the spouse back up to a reasonable standard of earning capacity so she’s not being thrown out in the street and reimbursement. Alimony is when you actually owe your spouse money because she paid for something of yours. So those two kinds of alimony do not get wiped away because that’s really money you owe someone. But the two most common kinds of alimony, open durational and limited durational alimony stop at the moment your ex gets married.
Of course, any arrears in any payments that you missed won’t get wiped away. You still have to pay that back, but you’re off the hook for the rest of your payments. Congratulations. Good for you.
Now, cohabitation is different. People call me and say, well, my ex wife just started cohabiting with her new boyfriend. I shouldn’t have to pay alimony anymore. Well, I might agree with you on a personal level, but it’s not that simple. The courts are going to look at the extent to which the cohabitation is contributing financially to her. Cohabitation is defined as a mutually supportive, intimate personal relationship in which a couple undertake certain duties and privileges commonly associated with marriage, even if they don’t necessarily maintain a single common household. In other words, even if they don’t live together on a fulltime basis, that couple can be considered co-habiting if they’re commingling their money.
So the court’s going to look at the extent to which they’re sharing living expenses, the extent to which they’re holding themselves out to be a couple and if they’re living together, are they sharing household chores, that kind of thing. A of things about this. Number one, I see this all the time. If you’re collecting alimony and are going to co-habit with somebody, don’t put it up on social media. I remember I had a case where I represented a former husband and his ex wife had a new boyfriend and she lied about it flagrantly to the court and for whatever reason, she didn’t think that I would look at her Facebook page and see the countless pictures of her and her new boyfriend traveling around the world to exotic locations and taking mud baths and showers together using my client’s money. Of course. Okay. This was not the most challenging case for me, by the way, and obviously my client won.
So if you’re collecting spousal support and you’re going to co-habit, it’s probably a good idea not to brag about it to the entire world, but if you’re paying alimony, the question then becomes, how do you prove it? If my ex isn’t dumb enough to post about it online, well, it’s not enough to tell the court that your ex is co-habiting or that she’s got a new boyfriend. That may be true, but you have to demonstrate it. You might need a private investigator. Maybe you need witnesses who are going to testify for you. The thing to remember about court is it’s not about what happened, it’s about what you can prove happened. So make the motion if you want, but be prepared to prove your arguments.
All right, let’s move on. What happens if you’re paying alimony and you suffer a decrease in income? Well, that could be a good reason to ask the alimony be decreased.
And the rule of thumb here is two-fold. First, you have to make a showing that circumstances have changed, that have substantially impaired your ability to support yourself. And number two, you have to show that it’s happened for at least 90 days. Okay? This can’t be temporary and it can’t be expected. So if you have a spousal support obligation as part of your divorce, and you know when you’re entering into a divorce agreement that in a year or so or whatever the time is that you’re going to have a different job that pays you less money. Well, unless you’ve indicated in your marital settlement agreement that the expected reduction in income should reduce your spousal support obligation, that’s not going to qualify because again, expected changes don’t qualify as changes of circumstances.
Okay, but let’s assume that you lost your job or you took a severe pay cut that wasn’t expected and it wasn’t your fault and it’s exceeded 90 days. Then we have to distinguish between whether or not this was voluntary or involuntary. Now, if it was involuntary, if you lose your job or you take a pay cut, by no fault of your own, the court’s going to look at the reasonableness of your ability to get a job of equal value. There’s a case called “Story” where the husband was making like $110,000 a year selling computer hardware and he lost his job and nobody doubted that it was not his fault. He then got another job where he was only making $15,000 a year. So the court decided to impute income to him saying, even though you’re only making 15,000 a year now based on your training and experience and your work history, you should be making much more than that. So the court denied his motion to modify alimony because he didn’t establish that his career change was reasonable.
So the court looks at two things. Is the in accepting replacement employment reasonable? And if so, is the adjustment that the spouse is seeking fair and reasonable to both parties. But same principle is obviously therefore going to hold true for a voluntary reduction in income. Let’s say you’re paying spousal support and you choose to leave your job for whatever reason and take a much lower paying job, the court can deny your application to reduce spousal support even if it finds you acted in good faith. Because again, you’re going to have income imputed to you. And the court’s also going to look at whether the financial suffering that occurred from your decision should be visited upon you rather than your spouse.
Okay, so what if you choose to retire though? Well, now we have to distinguish between early retirement and retiring at the general retirement age.
Voluntary early retirement can be a reason to modify alimony, but it’s subject to what’s called individual interpretation. In other words, the court’s going to ask whether your retirement was reasonable and in good faith. So the courts are going to look at whether it’s reasonable for you to retire early because of your age or how close you are to the standard of retirement age as determined by Social Security, which is 67 now, but it changes depending on what year you were born. The court’s also going to look at your health and your motivation and what the effect is on your spouse in terms of how it’s going to impact her if your spousal support obligation is reduced or eliminated. And I would also add that the court should probably also consider the extent to which this was planned and known to your spouse during the marriage.
Because if it was always expected that you would retire early, you have a better chance of arguing successfully in favor of ending or reducing your spousal support obligation.
However, if you retire at the social security retirement age, there is a rebuttable presumption. The alimony shall terminate. This presumption can be overcome. However, if the court determines based on certain factors that alimony should continue, and it’s all kind of the same thing we already talked about, you know, they’re going to look at how much alimony has already been paid. They’re going to look at the source of the income of the parties, the relative health of the parties, you know, any other factors the court deems relevant, like the extent to which either side is dependent on the money, all those things. So nothing is really black and white as far as this goes, which means it is all the more important to spell out as explicitly as possible in your marital settlement agreement what should and shouldn’t qualify as a change of circumstances to the extent that you can.
So those are the four most common reasons people use to end or reduce their spouses support obligation. But of course there are many others. An illness could be a change of circumstances, changes in federal income tax law, things like that. What if the party receiving alimony starts earning more money? Well, just because that person is earning more money does not necessarily mean that alimony should end or should be reduced, especially when those new earnings combined with the money that they’re getting simply allows that person to maintain the standard of living that they enjoyed during the marriage. And you can imagine that this involves a very detailed and in depth analysis by the court. So it’s important to keep track of the other side’s earnings and as part of your marital settlement agreement, there should be a requirement that both sides exchange income tax information every year for exactly this reason.
All right. Lastly, I want to touch on bankruptcy really quickly. Does bankruptcy end alimony? The short answer is no, it does not. And by the way, it doesn’t end child support either. And that’s another topic for another video. However, the circumstances that led to bankruptcy could be considered significant enough to justify the reduction or elimination of alimony. So bankruptcy itself does not eliminate alimony, but the dire financial condition that you find yourself in might.
All right. That’s a brief overview of ending or reducing alimony payments in New Jersey. But of course the actual process is much more involved. Everybody who’s paying alimony wants to pay less and wants to reduce the amount of time they have to pay it. And everybody collecting alimony wants to keep collecting it and wants to collect more and for a longer amount of time. So the bottom line is when you’re getting divorced in the first place, make sure you hire a competent attorney who knows what he’s doing so you can structure your marital settlement agreement in a favorable way for you and which creates a reasonable expectations and parameters, because once that thing is signed, it’s very difficult to change. And when you do need to change it, spend the money and get an attorney who knows what he’s doing. This is complicated stuff. And if you think you can just represent yourself because you’ve read a few blog articles or watched the video on YouTube, even one as good as mine, you’re probably going to be in for a bad experience. You wouldn’t perform a medical operation on yourself and you shouldn’t perform a legal one on yourself either. Just hire a professional, you’ll save money in the long run.
All right. If you have any questions or like to come in for a consultation, please contact my office and set up an appointment and I’ll be happy to meet with you. Thanks for watching and good luck.