Special Considerations to Request a Change in Alimony Payments Because of Disability in New Jersey
With Proper Justification, You can Seek a Modification of Your Spousal Support Payments Due to Disability or Illness in Southern NJ
New Jersey alimony law allows both parties in the divorce to maintain a standard of living as close to the time before their separation. It can also support an ex-spouse until they become economically self-sufficient. The period over which the alimony is to be paid does not exceed the years the couple was married. However, when the supplier of the alimony becomes injured or disabled, they can request the court authorize a reduction in the amount of alimony they must pay.
What if the Alimony Payor Becomes Disabled in New Jersey?
Suppose the alimony payor cannot keep their job because of an injury or disability. In that case, a motion can be filed in Family Court to lower the amount of alimony that is being paid based on the decrease in income that the payor has experienced. A trial will be held to receive evidence of the injury or disability and its effect on the ability to pay alimony.
What Constitutes “Change of Circumstances” According to NJ Law?
Since 1980, the decision made in Lepis v. Lepis has been used frequently when determining what can be identified as a change of circumstances. In summary, the court established what events are of enough weight to justify a change in alimony payments. Some of these circumstances include an increase in the cost of living, changes in the payor’s income (either an increase or a decrease), a change in the health of either party after the original support decision was made, and the dependent’s entrance into the workforce.
The Lepis decision also established guidelines in procedure when addressing modification applications. The payor must demonstrate how their circumstances have changed enough to warrant a decrease in alimony payments. This is also referred to as prima facie (Latin for at first sight), and it requires the alimony supplier to provide clear and convincing evidence that their disability or injury has affected their income by completely disclosing their financial information, making the payment of alimony at its present amount a financial burden. The payee must present their economic status as well. Then the court must decide how much of a change there will be in the amount of alimony to be paid, keeping in mind the evolution of income.
Steps to Request a Modification of Alimony When the Payor is Disabled or Ill
To request a modification in alimony, the payor must file a petition with the Family Court requesting a Lepis hearing where the payor must show the court why they cannot pay alimony because their income has decreased significantly due to an illness or an injury.
Because medical records or test results are considered hearsay, the payor must provide a doctor as a witness who can explain the nature of the injury or illness, substantiate medical records belonging to the plaintiff, and explain why they cannot seek employment both in a written report and on the witness stand. Without this testimony, it is nearly unachievable for someone to win a reduction or elimination of alimony based on an injury or illness.
The court will then decide if a decrease in alimony is called for or a stop altogether. When the decision is made, the payee can take their case to the Appellate Courts to be heard again if they believe there is a cause. The only people who can grant alimony modifications are family and appellate court judges.
Two Practical Examples of Disability in Spousal Support Reduction Cases
Golian v. Golian
In Golian v. Golian, the wife claimed she needed more alimony because she could not work due to a disability. The trial court disagreed, arguing that she failed to present enough evidence of her disability, was voluntarily not seeking employment, and assigned her a yearly amount of alimony at $15,000. The court believed she could work, and the alimony should be considered supplemental.
The Appellate Court, however, held that proof of disability benefits from the Social Security Administration was prima facie, enough evidence to grant her motion. They determined that the burden of proof relies on the party who challenges the validity of the effect of a disability or illness on the part of the plaintiff and the fact that the wife had already given proof of her SS benefits, the subject of her disability was res judicata or no longer a matter in dispute.
Wasserman v. Parsciasepe
Another critical decision regarding alimony and disability is the case of Wasserman v. Parsciasepe. In the divorce trial, the court ordered the wife to pay $400 weekly to her disabled husband as his only other source of income was from Social Security. He had severe kidney problems, and he received a kidney transplant six months before the divorce. The wife filed a motion for a reduction or elimination in alimony. She was required to prove that her husband was well enough to work. She had two witnesses testify, one was a nephrologist, and the other was a rehabilitation/employment counselor. The nephrologist testified to having read 100 documents of treatment plans, medications, and prognosis, from the defendant’s medical records. It stated that the defendant was well enough to work at certain kinds of jobs. The counselor explained that there was no reason why the defendant couldn’t work in a position that required little physical exertion or stress, such as a bookkeeper, sales, or photography. He claimed that the defendant could earn anywhere from $35,000 to $75,000.
The husband took the witness stand to negate his ability to get a job. He claimed to have health problems in other areas such as high blood pressure, gout, sleep apnea, edema, diabetes, numbness and tingling in his hands and feet, and a significant weight issue. He also offered that he was on 11 medications, still has frequent doctor visits, and went to a psychotherapist weekly. He added that as the plaintiff made a great deal more money than he did, she should continue to pay alimony.
The judge ruled in favor of the plaintiff, finding her witnesses credible and her proposal that her husband could work plausible. Her alimony payments were reduced from $400 to $150. Weekly. This decision is significant because it means that simply because someone is receiving disability payments from Social Security, it should not be assumed that those benefits are their only possible income. If it can be proven that their health is not an obstacle to employment, alimony payments could be lowered or ended.
Contact us to Schedule Your Free Consultation Today
As you can see, requesting modification of alimony is a process fraught with complications. You need an expert divorce attorney to see the process through and assure you have been treated fairly. Someone who works meticulously, with great attention to detail, is the kind of attorney you need.
Many factors are considered when it comes to alimony. Attorney Peter J. Bronzino has many years of experience assisting clients with all aspects of family law. His passion for practicing law and his tenacious approach make him an outstanding asset in Rumson, Point Pleasant, Sea Bright, Middletown, Holmdel, Harvey Cedars, Seaside Heights, Bay Head, and elsewhere in Ocean and Monmouth County.
If you are dealing with an alimony modification issue involving an illness or disability, or someone close to you needs help in this area, call the Bronzino Law Firm at (732) 812-3102 or connect with us online to schedule your free consultation or appointment at our offices in Brick and Seagirt, NJ.