Divorce FAQ's

When does open durational alimony ever end?

1. I have been paying open durational alimony forever. When is “enough is enough?”

The area of alimony is perhaps the most emotional issue in the field of family law. Open durational alimony has replaced the option for permanent spousal support in New Jersey. This is typically only granted to married couples that were married for at least 20 years. In this form of spousal support, the court will not necessarily set an end date for the support payments. If there is a change in circumstance, the parties can request that the alimony is terminated. Under the current status of the law, alimony can only be reduced or terminated if there is a Lepis “change of circumstances.” Therefore, one of the foundations of family law is that there must be changed circumstances to justify an alimony modification. There are many cases wherein a client may not satisfy the Lepis requirements to justify having his alimony payments terminated or reduced. What can a client do if he can’t satisfy the Lepis requirements? A person 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 the PSA neither fair nor equitable, then a strong argument can be made that it is the responsibility of the court to review the PSA.

2. What type of legal authority is there 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 has held that the enforcement of a PSA can only be made 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 assure that only fair agreements are enforced. In summary, a court has equitable powers to enforce a spousal support agreement only if it is found to be unfair and inequitable. The family courts are not interested in me enforcement spousal support agreements that are not fair or equitable.

3. How does a person challenge a spousal support agreement when there are no Lepis “change of circumstances” have occurred?

If a person does not have any Lepis changes 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 open durational alimony last forever?

There are many cases that have PSA’s with permanent alimony provisions in them. A key issue is whether an agreement that contains permanent alimony provisions must under all of the circumstances be construed as an irrevocable permanent obligation. There are many cases wherein a “permanent alimony” agreement was reached prior to the enactment of the Limited Duration Alimony statute. Prior to September 13, 1999, only permanent and rehabilitative alimony were recognized by statute. Before the statute, parties or courts only had the legal option to agree to permanent alimony or to no alimony. Therefore, prior to September 13, 1999, in most divorce cases the courts awarded permanent alimony for the majority of the mid-length marriages. A mid-length marriage is basically construed to be any marriage ten to fifteen years. If these cases were tried today then in about one half of these cases, the permanent alimony would be reduced to only limited duration alimony award.

Now, after a substantial period of time, for example a twenty, fifteen, or twelve year marriage, is it still fair and equitable for that award to continue even if the initial award was “permanent.” There are pre-limited duration alimony cases that involve relatively young people which have created alimony obligations far longer than would have occurred 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 Limited Duration Alimony statute may constitute a “change of circumstances” in many alimony cases.

There is also case law to substantiate this legal theory. In the case of Castiglioni v. Castiglioni, 192 N.J. Super. 594 (Ch. Div. 1984), the court modified a PSA/agreement based on changes in the law. The court held that if it did not modify the PSA then it would result in an enforcement of 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 also 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 change in law was unfair.

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