1. What is an anti-Lepis clause?
The seminal Lepis case 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, the parties will insert a clause in the property settlement agreement that will prevent any modification of alimony even if there is a potential chance of circumstances into the future. This type of clause is known as an anti Lepis clause. These types of clauses have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.
Many lawyers try to protect their clients by negotiating and including in the property settlement agreements provisions that restrict an ex-spouse’s ability to seek alimony in the future. An ex-spouse can always file a Lepis motion to seek alimony or an increase alimony. 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 any property settlement agreement. The bottom line is that the validity of an anti-Lepis clause is decided on a case by case basis. However, before any person signs a property settlement agreement that has an anti-Lepis clause, the ramifications of this clause should be carefully explained to him.
2. Could you please give me some examples of an anti-Lepis clause?
Below are some anti-Lepis clauses that I use in the property settlement agreements that I draft and use in my divorce cases. There are many different versions of anti-Lepis clauses. Perhaps one of the best aspects of living in the United States is the amount of choices that a citizen has is almost limitless. In the 1970’s there were only a few different types of sodas for a consumer to purchase at the local convenient store. There was Coke, Pepsi, Seven Up, and a few other different types of brands of soda. In today’s world, when you go to the local Seven Eleven or WaWa’s there is almost 100 different types of sodas and soft drinks that you can purchase. The same types of wide range of choice also apply to the types of anti-Lepis clauses that a matrimonial litigant can insert into his property settlement agreement.
Version one is a very basic anti-Lepis clause. This version should be used for a short term marriage, and if 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, and if there were children born of the marriage. Finally, 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 length to long term marriages, and if there were children born of the marriage. These versions are very detailed and comprehensive. The more detailed and comprehensive that the anti-Lepis clause is drafted, then the greater the odds that it will withstand any 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
Anti-Lepis Clause – Version Four
- 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.
- 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.
- 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.
- 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.
- 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 mayor may not occur in the future.
3. Can divorcing spouses agree to make the alimony provisions in their property settlement agreement non-modifiable?
The bottom line answer to this question is that each case must be reviewed on its individual basis. The development of New Jersey caselaw indicates that any application that tries to invalidate an anti-Lepis clause must be evaluated using the 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 any alimony modification. The parties placed a very detailed anti-Lepis clause in their property settlement agreement. The agreement provided in pertinent part;
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 chance 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 ths 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 substantial less that 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 him at the time when the marital agreement was entered into. 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 any 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 term was as follows: “The parties contemplate termination of alimony in no more than six years, regardless of changes 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 chanced 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 the New Jersey caselaw.
Another interesting case is Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993). In the Morris 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 a 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 caselaw 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, 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 court 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. The parties own property settlement agreement rejected the changes of circumstances guidelines of Lepis. Therefore, the court enforced the parties own individually drafted anti-Lepis clause.
5. How will the New Jersey courts review future cases that involve the enforceability of anti-Lepis clauses?
After the Morris case, it is clear that any reviewing court that has to rule 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 caselaw, the very notion of an anti-Lepis clause is probably now outdated law.
To ensure that an anti-Lepis clause will withstand judicial scrutiny, then it must be drafted with an attention to detail and it must also be comprehensive. Any anti-modification provision 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 any changed circumstances in the future. The clause should indicate that the parties have made trade offs 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.
In summary, 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, then this certainly can 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 the event of receiving a significant inheritance may constitute a Lepis change of circumstances. In the case of Weitzman v. Weitzman, 228 N.J. Super. 346 (App. Div. 1988), the court 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 Lepis motion that seeks to void an anti-Lepis clause in my property settlement agreement?
The enforceability of any anti-Lepis clause will be decided on a case by case basis. If a person wants to try to reopen a divorce case and seek additional alimony then she should seek the advice of an experienced matrimonial lawyer. Any litigant that files a motion to reopen a divorce case to seek additional alimony based on Lepis must exhaustively document their case. 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 any Lepis motion. All e-mails that verify that the ex-spouse has diligently sought to obtain similar suitable employment should be made as part of the motion. In summary, a matrimonial litigant must provide detailed documentation to the court to verify any medical condition, job loss, or the inability to find suitable employment. If a matrimonial litigant fails to provide adequate documentation to support any Lepis motion, then her chances to have a successful outcome is slim to none.
The chances of success to void an anti-Lepis clause in a Lepis case 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 says some smart and clever arguments to the court they will win their case. This myth is reinforced by the countless TV shows that deal with the legal world. The bottom line is that Lepis cases are won on lost on the quality of the motion papers. Even if your lawyer should say the most clever arguments to the court, you will still lose your Lepis case if your motion papers are incomplete and poorly drafted. In the world of family law the quality of the paperwork is the most important part of any Lepis application.
Another important factor in the ultimate chances of your success in an application to void an anti-Lepis clause depends on the individual judge who is assigned to your case. Some judges will strictly interpret an anti-Lepis clause and look no further into the family’s personal situation. Some judges will refuse to carefully analyze the prevalent caselaw and they will simply deny the motion. Alternatively, some judges will carefully scrutinize your case if your legal papers are persuasive, and if they are 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 to is of the utmost importance.
If an ex-husband quite remarkably doubles his income after the divorce is over, then many judges will consider this factor also to be a sufficient “change of circumstances” to void an anti-Lepis clause. In my experience, many ex-husbands quite remarkably substantially increase their income once the divorce case is finished with. Many ex-husbands try to keep their income artificially lower until their divorce proceedings are finalized. Many devious ex-husbands realize that the amount of alimony and child support that they have to pay is calculated based on their current income. Therefore, many ex-husbands deliberately keep their current income artificially lower until the divorce case is over with. Moreover, many ex-husbands turn down promotions, or fail to accept better job offers during the rocky parts of the marriage leading up to the divorce. However, once the divorce is over, many ex-husbands quickly accept higher paying employment positions. Many courts will consider scenarios such as these to constitute a “change of circumstances” to void an anti-Lepis clause.
If a wife loses her job then this also may 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. Perhaps an ex-wife was a computer programmer, and her job was shipped off to India. This type of scenario is quite common in today’s world. During the marriage a wife who was a computer programmer could earn a six-figure salary. However, after the marriage, the ex-wife’s employment position and any similar positions may have been phased out completely. The ex-wife now has to be retrained for a new job and field. This type of scenario might convince many courts to declare this to be a “change of circumstances” to enable her to void an anti-Lepis clause.
Another important factor in any case that attempts to void an anti-Lepis clause is whether the ex-wife is still the primary caretaker of the 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 then this money is also used to support the children. If an ex-wife has minor children, and if she truly has suffered hard times, then many courts will be inclined to void an anti-Lepis clause.
Finally, another ground that can be used to void an anti-Lepis clause is to allege that you received the ineffective assistance of counsel. The bottom line is that 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 on the final outcome of the case. Therefore, in some cases a matrimonial litigant can allege that the anti-Lepis clause should be voided because she received the ineffective assistance of counsel.