January 1, 1900

Final Judgment of Divorce is usually anything but "final". Almost all provisions of a Final Judgment of Divorce are subject to modification by a court upon a showing by a litigant of a "permanent, involuntary change of circumstances." This also applies to the provisions for alimony in a Final Judgment of Divorce.

Changes to the Law Governing Alimony Awards: The Marital Standard of Living

Though the award of alimony by a court is not based upon gender, most alimony awards are paid by the husband to the wife because the husband, more likely than not, is the primary wage earner. The factors that courts have often used to determine an alimony award are the duration of the marriage, the age, physical and emotional health of the parties, the parties' earning capacities, the length of time away from the job market, the amount of time by a party spent rearing children, and any other factor that the court deems relevant.

In the May of 2000, the New Jersey Supreme Court further refined the definition of alimony and held that alimony is the amount of support necessary to "maintain the supported spouse in a lifestyle reasonably comparable to the standard of living enjoyed during the marriage." The effect of this decision required New Jersey's family courts to take testimony from the parties concerning the standard of living enjoyed during the marriage at the actual time of divorce. For couples divorced both prior to and subsequent to May of 2000, establishing the marital standard of living is now essential for a court to entertain any application to modify the alimony award regardless of when the parties were divorced.

The marital standard of living is often determined by the parties' answers to the following questions: What kind of cars did you drive? How many times per week did you go out to dinner? Where did you purchase your clothes? How many times per year did you go on vacation? From these questions the court can evaluate and define the marital standard of living.

If a party was divorced prior to May of 2000, odds are that there was no testimony taken pertaining to the marital standard of living at the time of the parties divorce. Upon application to a court by a party to modify an alimony award and where no testimony was taken at the time of the divorce, a court will almost always order a new trial in order to determine the marital standard of living. Without such testimony, courts do not have a sufficient basis to grant or deny an application to modify alimony. It is helpful to keep in mind that in any application to modify alimony, courts are comparing past circumstances to present circumstances in order to determine whether or not there has been a change in circumstances sufficient to justify a modification of an alimony award.

Changes in Circumstances

As previously mentioned, the terms of a Final Judgment of Divorce, including an alimony provision, are always subject to modification upon a showing of a permanent, involuntary change in circumstances. But what is a change in circumstances relative to an alimony award? What makes a change in circumstances permanent and involuntary? And how does this inquiry affect the amount of alimony?

These questions can be addressed by the following example, but always keep in mind that the disposition of any "change in circumstances" application depends upon the court's evaluation of the specific facts of each case.

Assume that a former husband is paying alimony to his former wife. Assume further that he earns enough money to meet his alimony obligation. If the husband were to lose his job, this loss of employment would be a change in circumstances: his income would be reduced to the point where he could not meet his alimony obligation. However this "change" must also be found to be "involuntary" and "permanent" before a court will grant any relief.

If the husband was fired from his job because he violated his employer's drug policy and used illegal narcotics, then the change in circumstances will most likely be deemed to have been brought about by husband's "voluntary" conduct, and therefore his application to reduce the amount of his alimony obligation will most likely be denied. If, however, the change in circumstances was caused by circumstances beyond the husband's control, such as a downturn in the economy, then the husband's termination may be found to be "involuntary".

Assuming that the change in circumstances is found to be involuntary, the court would then inquire as to whether or not the loss in income which resulted from the husband's termination is "permanent". A court may require the husband to demonstrate that he has made a good faith attempt to find comparable employment before the change in circumstances is deemed "permanent". If the husband finds comparable employment, or if the court finds that the husband should be able to find comparable employment, his change in circumstances will be deemed "temporary", and his application to modify support will be denied.

Should similar factual circumstances befall the wife, she may apply to the court for an increase in the alimony award. The court will apply the same factual analysis to such an application. If the court finds that she has suffered a permanent, involuntary change in circumstances, the court will evaluate the husband's financial position and determine whether an increase in support, based upon the standard of living enjoyed during the marriage, would be equitable given the parties' current circumstances.

There are also other circumstances that would justify a decrease in an alimony award. Since alimony is by definition the amount of support that is "necessary to maintain the supported spouse at the standard of living enjoyed during the marriage," once the supported spouse is able through her own income to maintain herself in a lifestyle reasonably comparable to the standard of living enjoyed during the marriage, the alimony award can be reduced in whole or in part. Under this theory of changed circumstances, the focus is not on the husband's ability to pay alimony, but rather on whether the wife is, or should be, in a position to support herself in whole or in part. If a court finds that the wife is able to maintain herself at the marital standard solely as a result of her own income, then a court will most likely eliminate the husband's alimony obligation.

The Role of Counsel

A finding of changed circumstances is always dependant upon the evaluation of the litigant's application by the Family Part Judge. Trial courts in the Family Part have broad equitable powers. The court's factual findings, and the conclusions flowing from those findings, are extremely difficult, if not impossible, to appeal. It is therefore essential for a litigant to be represented by counsel at the time that the court establishes the marital standard of living and for any subsequent modification application.

Experienced attorneys will not only be able to effectively represent his or her client's interests before the court, but will also have knowledge of the judge who is assigned to the case. This knowledge is crucial because judges utilize different philosophies when deciding these issues. Without the knowledge and experience of counsel, the litigant may waste valuable resources arguing a position that is premature and lacking in supporting documentation.

Though theoretically there is no such thing as a "final" Final Judgment of Divorce, establishing the marital standard of living forms a permanent basis from which the court will decide all future applications for modification of alimony. And each successive application to modify alimony will serve to evaluate the parties' circumstances relative to the marital standard of living.

Anthony N. Gaeta is an associate of Hill Wallack and member of the Administrative Law/Government Procurement Practice Group. His principal area of practice is in the areas of economic and business development with a particular emphasis on municipal law and government affairs.