Does my alimony automatically decrease now that I’m making less money?
Unfortunately, typically a change in financial obligation to a former spouse is not automatic unless your divorce decree specifically provides for that. In order to have the family court judge evaluate whether a decrease is appropriate, a motion must be filed.
A vast majority of our new clients have been contacting us for a consultation immediately after they lost their jobs or after having a substantial cut in pay. Most presume that since they now have less money and less ability to make the alimony payments, the court will instantly terminate alimony until they find a new job or make more money.
One of the most important lessons in New Jersey Family Court is that precious few things happen automatically and almost any change requires either the consent of the other party or Order of the Court. Consent can be obtained either by directly contacting your ex-spouse and advising them of the change. Some Marital Settlement Agreements (otherwise known as “MSA” or Marital Settlement Agreement; Property Settlement Agreement; or PSA) require that you notify your ex-spouse and request that they attend mediation before you are permitted to file a motion. Even if not specifically required, most often, consent is sought by requesting that your ex-spouse participate in mediation.
If your agreement does not have a “mediation clause” and you do not wish to speak to your ex, you will need to file a motion asking the judge to modify the alimony obligation. While courts have the power to modify or reduce alimony at any time, the New Jersey Supreme Court has held in Lepis v. Lepis, that the party making the motion must demonstrate that their circumstances have changed so significantly that they have a decreased capability to support him or herself. After the significant change in circumstance is demonstrated, the court must decide if a plenary hearing is necessary. At the plenary hearing, the court will evaluate factors such as whether the change in circumstances is voluntary; whether the change is permanent; whether the change was made in bad faith; and whether the change makes the person paying alimony unable to pay.
There is no clear definition of “significant” and typically this is dependent on the individual financial facts of each case. However, in evaluating motions of this type, most judges will require that the person seeking to have alimony be recalculated show that they have made substantial efforts to seek similar or comparable employment as to the position or income they had previously. While the economic impact of COVID-19 may change this somewhat in the coming months, many family court judges in New Jersey apply strict scrutiny to the facts presented in a motion to reduce or terminate alimony.
We always advise our clients to have proof of similar jobs that were sought and the status of the applications. We also advise our clients to consider whether they should apply and show proof of attempts to gain employment outside of their field but with similar income/earnings. Without a showing that you made a good faith attempt to find comparable earnings to meet your alimony obligation, it is unlikely that the judge will find it to be reasonable for you to ultimately take a lower paying job. The key here is a good faith effort in seeking a similar job with similar pay. The experienced lawyers at our law firm can help your case in order to enhance the likelihood of success.
Call us today to ensure that New Jersey’s alimony laws are
appropriately applied in your case.