The time period and quantity of the momentary upkeep can actually be modified? …For actual?

As a continuation of my posts on the subject of child support payments, the specific issue that is the subject of this blog post may come as a surprise to some supportive spouses; namely the fact that the duration and amount of a maintenance obligation of limited duration may be extended in some rare cases.

The New Jersey courts have the power to vary the amount and duration of limited-duration child support payments. In the case of changes in alimony payments of limited duration, the Alimony Support Act, NJSA 2A:34-23(c), provides the following:

An award of alimony may be varied either because of changed circumstances or because of the non-occurrence of circumstances which the court considered to have existed at the time of the award. The court may vary the amount of any such award, but will not vary the length of the term of office except in unusual circumstances.

Rothfeld v. Rothfeld (App. Div. 2008), although unpublished, is just one example of this part of the law in action. In Rothfeld, the parties divorced after approximately seven (7) years of marriage. They had two (2) children: Jonathan who was born on September 19, 1996; and Martin, born September 15, 1998. Both parties were members of the New Jersey Bar and the husband was in active private practice. However, the woman had not returned to active practice due to her parental obligations to the children, particularly Jonathan, which had prevented her from doing so.

Upon reaching their divorce settlement, the parties agreed to a “temporary alimony payment” of $500 per week for four years, effective April 1, 2003. According to the wife, at the time the PSA was negotiated, “it was assumed that [she] would be able to get a day job in the field of law.”

When the PSA was negotiated and signed, Jonathan was around six and a half years old. He had some difficulties at school; and there was some concern that he might have Attention Deficit Disorder. In the years following the divorce he was diagnosed with the following disorders: (1) Attention Deficit/Hyperactivity Disorder; (2) obsessive-compulsive disorder; (3) Asperger’s Disorder (a form of autism); and (4) bipolar disorder. As a result of his various medical conditions, Jonathan took several medications and received regular treatment from several mental health professionals. As his disorders developed and progressed, Jonathan’s behavior both at school and at home became increasingly problematic. In 2007, he was transferred from public school to an outpatient special school.

The woman’s increasing responsibility to Jonathan had prevented her from finding any significant employment. The records showed that the parties considered that the wife would continue to perform parental responsibilities but would also begin to receive at least some of the day-to-day work as a lawyer.

The wife filed a post-judgment motion seeking the following relief: (1) continuation of child support until Jonathan graduates from high school; (2) an increase in maintenance to $800 per week; (3) preparing updated financial information; (4) an increase in child support if the court has denied child support; (5) the establishment of a fund for Jonathan’s care after he is eighteen; and (6) attorneys’ fees. The husband opposed the request, arguing that the wife was bound by the PPE, which both agreed was fair and just at the time it was carried out, and that she had failed to demonstrate adequately that she was unable to work part-time.

On May 4, 2007, he filed an order denying all the reliefs he was requesting, except for a request that the husband provide his current financial information. The wife appealed.

The Appellate Division reversed and found that the wife had presented prima facie evidence of (1) an increase in alimony for a limited period due to “changing circumstances”; and (2) an extension of term due to “extraordinary circumstances”, both ordered under NJSA 2A:34-23(c), and a plenary hearing.

In particular, the Appellate Division considered that the wife had provided sufficient prima facie evidence that Jonathan’s current mental health status could not have been foreseen at the time of the divorce. Although it appeared that at the time the PSA was negotiated, there were some manifestations of behavior problems at school that were attributed to the possibility of attention deficit disorder, his later diagnoses of Asperger’s Disorder and Bipolar Disorder revealed significantly more serious disorders with potentially larger ones Impact on Jonathan’s life as well as that of his wife as a primary resident parent.

While the Appeals Division further agreed that the wife’s evidence relating to her efforts to find employment was tenuous at best, it found that the records, principally the wife’s attestation, contained sufficient evidence to warrant a further judicial inquiry into her allegation to justify that her parental responsibilities related to Jonathan’s behavioral problems precluded either anticipated employment as a subsistence attorney or any other form of employment.

While in custody, the court issued a sweeping written decision, noting that Jonathan’s needs were “great” and the wife’s “love and devotion to him impressive,” but concluded that she had nevertheless failed to show that she is entitled to an extension or increase in maintenance:

Apparently there has been a major change that was not foreseen at the time of the divorce. . . . However, after reviewing the evidence and testimonies presented by both parties, this court concludes that the defendant failed to provide evidence [that] “extraordinary circumstances” have affected her ability to support herself and do not provide sufficient evidence to support her claim. In particular, she fails to explain the impact of childcare responsibilities on her earning capacity.

The court therefore rejected the wife’s application for an increase and extension of the alimony. The wife then appealed again (App. Div. 2011), and this time the Appeals Division upheld the trial court’s decision.

Because alimony orders can always be changed as circumstances change, it’s important when entering into an agreement to be aware of what may happen later. This is just one possibility out of many that both spouses need to consider.