The not “new” upkeep legislation: Questions of retroactive impact stay unanswered

The “new” maintenance law is more than seven years old and still leaves questions unanswered. This includes whether and to what extent the subsections of the Act apply retrospectively. The need for a definitive standard is most pressing when a dependent litigant is filing a post-judgment motion seeking to review or modify a maintenance obligation that exists under the law. While a court is endowed with wide discretion and inherent authority to deal with each unique factual situation, the lack of a definitive standard has the unintended effect of perpetuating confusion and litigation between attorneys and judges. Due to space limitations, this article focuses on NJSA 2A:34-23(k), which allows a dependent spouse to request a change in maintenance. In particular, it addresses whether subsection (k) can be applied retrospectively to cases decided or settled before the 2014 changes in the law.

Subsection (k) provides that a trial court, in deciding whether to amend a debtor’s alimony, should consider the following factors: