The case in question was Beden v. Beden. Mary Beden and Lance Beden had been married for about 30 years when they divorced in 2010. Their property settlement agreement stipulated that Lance would pay Mary $800 per week in permanent alimony. This alimony was to stop only upon the death of either party or the event of Mary’s remarriage.

Lance fell behind in his payments, and in October 2014 Mary went to family court to have his alimony obligation enforced. The judge ordered Lance to pay what he owed and to sell the marital home the couple had shared in order to meet his obligations. Lance did not appeal this decision but neither did he comply.

Read more: Alimony Modification

Modify Alimony Payments words on a road leading to a dollar sign as reduced financial obligation to ex husband or wife in divorce

In April 2015 Mary went back to court.

Lance then asked that his alimony obligation be reduced retroactively. He claimed that he had been laid off and could not find a comparable job.

In July 2015 the court ruled against Lance, noting that he had not proved that his circumstances had been changed substantially, and refused to grant his request for a modification in alimony. The judge reasoned that a 59-year-old man with a college degree in electrical engineering and many years of experience should be able to find employment.

Lance Beden appealed the Family Part’s decision.

Family Part judges are presumed to have expertise in these matters; therefore, they are given a great deal of discretion. The Appellate Division does not overturn their decisions without good cause.

The burden of proof is always on the party requesting the change. This is true whether the payor is asking for a reduction or the payee is requesting an increase.

In order to convince the Appellate Court to vacate a trial court’s order, the party appealing the ruling must show that the trial court either abused its discretion or failed to consider all pertinent legal aspects of the case.

Change in circumstances can be a valid reason for requesting a modification of alimony, either a reduction or an increase. These are among the occurrences that might lead to that request:

• loss of income due to the loss of a job;
• illness or disability;
• retirement; and
• an increase in the recipient’s income or assets.

The Alimony Reform Act provided courts with some guidance regarding whether or not a payor’s change in circumstances justifies a reduction in the amount of alimony. According to the statute, judges should consider the following:

• Why did the payor have a change in income?
• Did either party suffer a financial loss or a medical hardship?
• Did the one who lost a job make a good faith effort to find a comparable one?
• If a lower-paying job was taken, was that decision reasonable?

In this case the burden of proof was on Lance Beden to convince the Court that the change in circumstances was enough to warrant a reduction in his alimony obligation.

In order to claim a change in circumstances, Lance Beden was required to prove that he made a whole-hearted effort to find a new job.

The record showed that his job search comprised these steps:

• he posted his resume online;
• he attended one job fair; and
• applied for seven jobs.

As part of its unpublished ruling, the Court explained that it did not agree with Mr. Beden’s conclusion that there were no jobs for someone with his credentials. It did not believe that he had made a good faith effort to find a suitable job.

The Appellate Division denied Lance Beden’s request to vacate the Family Part’s ruling. Mr. Beden was ordered to pay alimony in the amount agreed upon in the property settlement.

Because this was an unpublished ruling, the decision is relevant for this case only.

Alimony modification is possible, but it is often difficult to achieve. The party requesting the change has the burden of proof. If the judge is convinced that the change in circumstances exists and that the case has merit, then the court will order a plenary hearing.

These matters are complex, and you should seriously consider hiring a qualified NJ divorce and family law attorney to assist you and guide you through the process if you are either requesting a modification or fighting one.

One of the reasons cited for the change was to give supporting spouses the ability to determine what their financial situation will be upon retirement before making a final decision on when to retire. However, the meaning of the term “prospective retirement” was left open to interpretation.

In April 2016 the concept of “prospective retirement” came before Judge Jones of the Ocean County Superior Court, Family Part, when the case Mueller v. Mueller was brought before him.

Mueller v. Mueller

Background Information

Mr. and Mrs. Mueller married in 1986 and divorced in 2006. As per their divorce settlement agreement, Mr. Mueller agreed to pay his former spouse $300 per week in permanent spousal support. The agreement did not include any provisions for a change in alimony when Mr. Mueller retired.

In April 2016 Mr. Mueller, the plaintiff, filed a post-judgment motion asking that alimony be terminated when he retires at age 62 in five years. He asserted that at age 62 he will be entitled to full retirement and maintained that if the court order ending his obligation is not issued, then he will not be able to retire.

Mrs. Mueller made a cross-motion for an order denying her former spouse’s motion for termination.

Factors Considered by Judge Jones in His Legal Analysis

Judge Jones cited several factors that should be considered when deciding whether or not modification or termination of alimony is appropriate. Among them were the following:

• the age and health of the parties at the time of the application;
• the generally accepted age of retirement in the payor’s field of employment;
• the reasonable expectations of the parties regarding retirement during the marriage;
• the parties’ reasonable expectations regarding retirement at the time of the divorce;
• the ability of the payor to maintain support payments following retirement; and
• the financial impact of the payor’s retirement upon the recipient.

The Decision

Judge Jones concluded that although it is not specifically stated, it is inherently implied that the prospective retirement must be in the near future. Therefore, he did not grant Mr. Mueller’s request for termination of alimony based on his retirement five years in the future.

The judge noted that too much guesswork would have to be involved regarding the parties’ health, financial situations, and other relevant factors. He suggested that it would be more appropriate if Mr. Mueller waits to make his motion about 12 to 18 months prior to actually retiring.

If you want to know more about retirement and other factors affecting alimony, the experienced New Jersey alimony attorneys at Aretsky Law Group, P.C., can answer your questions. For an initial consultation, call us 24/7 at 800-537-4154.

For many years, New Jersey case law has recognized that a savings component of alimony is sometimes necessary in order to protect the dependent spouse. Including enough in alimony so that the recipient can save some of the alimony each month, allows that spouse to build up a safety net in case the spousal support stops or decreases.

Lombardi v. Lombardi

The case that led to the September 2016 Appellate decision—Lombardi v. Lombardi—involved a high-asset divorce in Mercer County. The couple had lived a very frugal lifestyle for such a high-income couple. In fact, the two saved most of what they earned. Lisa Lombardi, the wife, appealed the trial court’s decision not to consider this fact when calculating an appropriate alimony award.

Background Information

When Lisa Lombardi filed for divorce the couple had been married 20 years.

At the time of the appeal, the couple had 3 children aged 15, 18, and 20.

Lisa Lombardi had given up her career to be a full-time homemaker when their oldest child was born. At the time of the divorce, she was working part time as a fitness instructor and was earning about $10,000 per year.

Anthony Lombardi was a successful financial analyst. His income for the last 5 years of their marriage ranged from $1,087,000 to $2,275,000.

For such a high-income family, the Lombardis lived an extremely modest lifestyle. They had mutually agreed to put a large portion of their earnings into savings. In fact, they saved almost three-fourths of their income.

While working out their divorce settlement, the couple agreed on many important issues, including child custody, parenting time, equal distribution of the marital property based on equitable distribution, and the fact that alimony would be permanent.

However, they could not reach an agreement regarding the appropriate amount of that alimony. Lisa believed that it should include a savings component; Anthony disagreed.

The Trial Court’s Decision

The New Jersey Family Part Court agreed that habitual saving was a part of their lifestyle. However, it affirmed the commonly held assumption that a savings component was necessary only if the dependent spouse needed it for protection.

Because Lisa Lombardi did not have to fear a future reduction or loss of alimony, the trial judge did not include it in the calculations. Instead the Family Part based the amount of alimony on the couple’s “modest middle-class lifestyle.”

In explaining the decision, the court judge also expressed the opinion that Lisa Lombardi still had the ability to save money and accumulate additional wealth. He cited these reasons:

• The $2,000,000 Lisa got from equitable distribution can be invested.
• She is not responsible for the children’s college expenses.
• She is not responsible for the children’s extracurricular activities.
• Lisa has the right to claim the children as dependents for tax purposes.
• She has the ability to work more hours.

The New Jersey Appellate Court Addresses the Issue

Lisa Lombardi appealed the trial court’s decision not to consider their habitual savings when calculating spousal support.

In siding with the plaintiff, Lisa Lombardi, the Appellate Court noted that the 2014 amendment to NJ alimony law made it clear that both parties are entitled to live a lifestyle reasonably comparable to their marital lifestyle.

The Court stated that the Lombardis’ habitual saving was an important component of their marital lifestyle. The couple put their money into savings in the same way that another couple might spend money on extravagant vacations, luxury cars, and other costly items. It would not be fair to enable Anthony Lombardi to continue to save in this manner as part of his lifestyle and not allow Lisa to do the same.

The Appellate Division sent the case back to Family Part with the instruction to reconsider their marital lifestyle. He ordered the court to recalculate the amount of alimony based upon that new assessment.

Do you have questions about alimony, equitable division of property, or other high-income divorce matters? The experienced high-asset divorce attorneys at Aretsky Law Group, P.C., can answer your questions about property distribution and other issues you are about to face. For an initial consultation, call us 24/7 at 800-537-4154.

Suppose that for the past three years you have been receiving a certain amount per week in alimony. Next suppose that your ex-husband loses the job he held for twelve years. Further assume that he accepts a lower-paying job.

Now imagine that you are the one who has been making the payments. You lost a job that you held for years and after a difficult search, you are offered a job that pays a lot less than you had been earning. You might feel as though you are in a no-win situation. If you accept the lower-paying job, you may be criticized for not trying harder to get a job more comparable to your previous one. On the other hand, if you refuse that job and do not get another offer of employment in a timely manner, you might be admonished for not accepting the first opportunity.

It is not surprising that the supporting ex-spouse in the above scenario would petition the court for a reduction in alimony payments. However, it is equally understandable that the recipient would oppose such a change.

Mills vs. Mills

The situation described above is similar to that of Mills vs. Mills.

In this recent case, the defendant asked the court to reduce the amount of alimony paid to his ex-wife because of a substantial change in his income.

The couple’s alimony agreement did not contain a provision addressing the modification of alimony should there be a change in circumstances.

Also, the divorce became final before the passage of the Alimony Reform Act of 2014. An important question to be considered was whether or not that act could be applied retroactively. Judge Jones of the Superior Court of Ocean County, New Jersey, addressed that question in his ruling.

The Alimony Reform Act of 2014

Before the passage of this act, a NJ court had a great deal of discretion in determining if and how a change in circumstances should affect alimony.

The Alimony Reform Act of 2014 provided judges with some guidance regarding these matters. According to this statute, the judge must consider several factors when determining whether or not a change in circumstances warrants a reduction in alimony. These factors include the following:

1. What were the reasons for the loss of income?
2. Was there a good faith effort to find comparable employment?
3. Did either party experience a change in health or finances?

Two-Step Inquiry

Judge Jones recommended that in order to be equitable and fair, a simple, two-step inquiry process should be used:

1. Was the supporter’s choice of replacement employment reasonable when all circumstances are taken into consideration?
2. If the answer to the first question is that it was reasonable, then what modification in support is appropriate? In other words, what would be reasonable and fair to both parties?

The Court’s Decision

In his ruling issued on October 11, 2016, Judge Jones granted Mr. Mills a reduction in the amount of alimony he had to pay to his ex-wife.

Two factors were cited:

• There was no provision in their alimony agreement about modification.
• The matter had not already been litigated and decided by the court.

Although Mr. and Mrs. Mills divorced before the passage of the Alimony Reform Act, Judge Jones used this act as the basis for his decision. He explained that to achieve fairness and equity, the “harsh present-day reality” often makes it necessary to apply the amendments retroactively.

He addressed his decision in the following statement:

“In this case, the court concludes that where this obligor is seeking modification of alimony based upon a loss of employment, the court may apply the terms and spirit of the 2014 amended alimony statute, even if the parties were divorced prior to September 10, 2014, so long as (a) the parties had no written agreement to apply a different standard, and (b) the issue has not already been litigated and adjudicated by the court.”

Judge Jones added, however, that in this case the change in circumstances would have been great enough to grant the defendant’s request for a reduction in payment under the previous law as well.

If you or your ex-spouse has undergone a change in circumstances and want the advice of an experienced NJ Alimony Lawyer, call us at 800-537-4154.