Modification of Alimony in NJ Due to Loss of Income During the COVID-19 Coronavirus Crisis

Alimony, or spousal support, is typically awarded as part of final divorce orders to allow an ex-spouse to maintain a lifestyle comparable to that enjoyed during marriage. Courts are likely to soon be inundated with requests for modification of alimony in NJ due to loss of income during the COVID-19 coronavirus crisis.

New Jersey is among the states most impacted by the virus. Businesses have been shuttered across the state, and thousands of workers have been laid off. Although federal guidelines have been issued for states to begin reopening their economies, the time required to return to something approaching normal may take months. Even then, people formerly employed in a variety of industries including travel, gaming and food service may find fewer jobs available. Persons obligated to pay alimony and who are now unemployed may simply be unable to pay the ordered amount.

Four types of alimony are outlined under New Jersey law. Whether open or limited duration alimony is awarded is typically based on the length of the marriage. Payment of rehabilitative alimony may be required if a former spouse must obtain additional training or education to become self-supporting. Reimbursement alimony is intended to payback a spouse who worked and maintained the household while the other spouse pursued a professional degree or other skills necessary to obtain a higher paying job. The first three types of alimony can be modified following divorce. Reimbursement alimony cannot be modified.

Whether a modification of alimony in NJ due to loss of income during the COVID-19 coronavirus crisis will be granted depends on an obligor being able to meet specific requirements. Judges reviewing modification requests will consider numerous factors.

A person obligated to pay alimony may request a change in the amount ordered or the length of time alimony is to be paid if there has been a substantial change of circumstances since the last alimony order was entered. Loss of a job and income will generally meet that requirement unless a person voluntarily quits a job or takes a lower-paying job.

Income loss must be substantial and not just temporary. The loss of a job due to the pandemic will certainly result in a substantial reduction of income. The question becomes whether it will be temporary or not. Given the uncertainty about how long social restrictions will last and the length of time required for the economy to rebound, whether an income loss will be temporary for many people is difficult to determine.

For employees of a business, defining temporary begins with a 90-day waiting period. A person must wait 90 days after experiencing a reduction in income before filing a motion to modify the alimony amount. While the obligor may be unable to pay the required alimony amount during that period, once the court considers the request, the court can make any alimony changes retroactive to the date of income reduction or job loss.

New Jersey courts have broad latitude to consider a variety of factors when deciding whether alimony provisions should be changed. These include the reason for income loss, the effort made to obtain replacement employment, the income and circumstances of the alimony recipient, any compensation paid in connection with the job loss, the obligor's lifestyle and the health of the parties involved. Judges may require the obligor to outline efforts made to reduce personal expenses as a result of income loss.

The 90-day requirement does not apply to business owners or self-employed individuals, but the court will consider additional factors. A court will examine both the economic and non-economic benefits a business owner receives from that business and will compare the current benefits to those available at the time the existing alimony order was entered. The additional scrutiny on business owners is justified because they generally have more flexibility in how salary and other economic benefits are distributed to both themselves and employees.

If modification is justified, a judge has broad authority to enter any order considered appropriate to ensure that both parties are treated fairly. This includes a temporary suspension or reduction of alimony payments. Liquidation or transfer of other obligor assets may be ordered to pay alimony. The court can also require periodic reviews of its orders to determine if they remain justified.

For anyone seeking modification of alimony in NJ due to loss of income during the COVID-19 coronavirus crisis, there are positive steps you can take while waiting for your day in court.

Discuss the situation with your ex-spouse. Attempt to work out a compromise until this crisis passes. You may be able to agree on paying a smaller amount now with increased payments to come once you regain employment. Document any discussions in writing. If you come to an agreement, make sure the modification is made in accordance with Marital/Property Settlement Agreement. For example, many Marital/Property Settlement Agreement require that any modification to the agreement must be in writing and signed by both parties before it becomes enforceable.

Pay as much alimony as possible. Even if you cannot pay the full amount, paying something will demonstrate a good faith effort to fulfill your responsibility. That can make a positive difference in court.

Obtain unemployment benefits to help cover alimony payments. Benefit payments have been extended and increased and are now available for many workers who were previously not eligible for assistance.

Find a temporary job. The court will expect you to explain what efforts you have made to find a job if you are asking for an alimony modification. There is a demand for grocery store workers, pharmacy employees and delivery drivers. For example, Amazon is specifically hiring temporary workers who plan to eventually return to their regular jobs.

The coronavirus has created both health and economic crises that may continue for an extended period. Cooperation between ex-spouses, difficult as that may be at times, can go a long way to ensure the needs of respective households are met. Anyone facing challenges to satisfy alimony obligations would be wise to consult a family law attorney to discuss options. If you any questions concerning modification of alimony during the COVID-19 coronavirus crisis, call the Law Offices of Peter Van Aulen at 201-845-7400 for consultation.