Article by Capehart Scatchard

One of the most common questions we have been asked since the start of the recession is whether and how an alimony obligation can be modified if one of the parties is making less money than they were making at the time of the divorce or dissolution or has lost his or her job. The answer is that under certain circumstances the alimony can be modified or even terminated.

Modifying or terminating alimony must be accomplished by following a series of steps established by New Jersey case law. First, the party who wishes to modify or terminate alimony has the burden of showing the Court that they have suffered such “changed circumstances” as would warrant relief from the obligation. This is not as easy as it sounds, as there needs to be a showing that the change is not temporary, that it is not self-induced, that it is not too close in time to the initial Order, that the modification/termination application was made in good faith and that the moving party has no other resources from which to pay the alimony. Any of these circumstances may lead a Court to deny the application.

Only if the moving party has made a “prima facie” showing of changed circumstances will the Court Order the other spouse to disclose his or her financial situation. Until the initial “changed circumstances” showing is made, the non-moving party does not have to reveal his or her finances.

If the Court agrees that a “prima facie” showing of changed circumstances has occurred and thereafter Orders the non-moving party to disclose his or her finances, then the Court has to examine the entire financial situation to decide whether or not a modification or termination of alimony is warranted. The more dependent the payee spouse was upon the alimony, the more difficult it will be to modify the alimony downward or terminate it entirely. Courts will often hold plenary hearings which are similar to trials before they arrive at a decision.

In summary, while it is possible to make an application to modify or terminate an alimony obligation, it is not easy to accomplish and the necessary steps must be followed to avoid a Court turning the request down.