Modification Based on Increased Income

When a married couple divorces in the state of New Jersey often one spouse may be awarded alimony. Alimony is the payment of money from one ex-spouse to another in order to allow the lesser earning spouse to maintain a similar standard of life as he or she did before the divorce. The amount of the alimony is decided during the course of the divorce, and is included in the Property Settlement Agreement (PSA). Determining the amount of alimony involves an examining the financial situation of each spouse in order to arrive at a figure that is equitable to both spouses.

As time goes on after a divorce, as you may imagine, one or more of the ex-spouses may have a change in circumstances that warrants a review and modification of the alimony award. Changes in employment, financial changes (both increases and decreases), changes in the cost of living can all give rise to a legitimate need to modify alimony.

The process for modifying alimony in New Jersey can be tricky due to the fact that the case law on the issue leaves each case open to interpretation by a judge without clear guidelines to follow on what constitutes a change of circumstance for the purposes of alimony modification.

The court in Lepis held that “changed circumstances” that impede the dependent spouse's ability to maintain the standard of living determined in the judgment of divorce, a modification to the alimony award may be necessary. “Changed circumstances” is the key phrase in cases of alimony modification. A judge must determine if the change in circumstances of the ex-spouses is significant enough to justify a modification of the alimony.

The Lepis case pointed to some situations that may (not must) merit a change of the alimony award. Those include:

• An increase in the cost of living
• Increase or decrease in the supporting spouse's income
• Illness, disability or infirmity arising after the original judgment
• Cohabitation of the dependent spouse
• Dependent spouses loss of housing
• Subsequent employment by the dependent spouse
• Changes in federal income tax law

The Lepis case points out that the courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.

If the dependent ex-spouse (the person receiving alimony, called the payee) has an income increase, the ex-spouse paying the alimony (called the payor) may seek to have the alimony that he or she pays modified or terminated, based on the change of circumstances. These types of cases can be hard-fought because they are decided on a case-by-case basis, with different judges deciding the cases differently.

In Glass v. Glass, the Appellate Division decided a case based on a change of circumstance due to a dependent spouse obtaining gainful employment. The court there held that even if a dependent spouse now has her own income and can support herself it is not sufficient to terminate alimony.

If the payor’s income increases, the dependent spouse may wish to have the alimony increased. The dependent spouse will have the burden of proof to show that a change of circumstance has occurred, which in this case will require a showing that the dependent spouse has a need for increased alimony, not just a showing that the payor makes more money. If the dependent spouse can show such a change of circumstance, the court will order a hearing and financial disclosures to determine if an increase is equitable.

Contact the Law Offices of Peter Van Aulen for a free initial consultation on your alimony modification case.

Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004)

Lepis v. Lepis, 83 N.J. 139 (1980)