Man Failed to Prove He Wasn’t Underemployed in New Jersey, Loses Effort to Reduce Alimony

If you’ve been ordered to pay alimony, the law creates a series of hurdles you must clear before a court can modify your alimony payments to a lower amount. One recent case highlights just how difficult it sometimes can be to meet these requirements and obtain relief. In the case of Lax v. Lax, the Appellate Division upheld a trial court’s refusal to lower the former husband’s alimony, even though his income was less than half the amount used to calculate his payments.

The ruling resolved a lengthy battle within the divorce of David and Frances Lax, who were married from 1986 to 2008. When the couple originally divorced, the husband agreed to pay the wife $7,000 per month in permanent alimony. Three years later, the husband went back to court, asking for a reduction in his alimony obligation. In the intervening three years, the husband had suffered a severe financial reversal, leading him to file both personal and business bankruptcies.

These bankruptcies, the husband argued, constituted the sort of “change in circumstances” required by the law to allow the court to reopen the question of alimony. The trial court held a hearing and, based upon the evidence presented there, decided to impute an income of $115,000 to the husband and reduce his alimony payments to $2,000 per month. A month after the modification, the husband again returned to court, arguing that his alimony obligation was still too high. He had just obtained a job paying him $55,000 per year, so the court’s previous calculation, based upon an imputed income of $115,000, was based on faulty figures.

The trial court rejected his motion, and the appeals court agreed. To succeed in an alimony modification motion, the payor spouse must not only show that he experienced a change of circumstances, but that the change is not temporary and is outside his control. In Lax’s case, he did not have this necessary proof. The evidence he offered did not establish that his current income level was not temporary and, additionally, he did not establish that he was incapable of earning the $115,000 the court previously imputed to him. (In other words, the husband failed to prove that he was not voluntarily underemployed when he took his $55,000-per-year job.)

In order to succeed in a case like Lax’s, the payor spouse needs clear proof that he made “diligent efforts” to obtain a job at the income level imputed to him but was unsuccessful. The payor spouse must also prove that his lessened earning potential situation is not temporary but would remain the same indefinitely.

If your income has taken a substantial dip, the law may allow you to pay a lesser amount of alimony to your ex-spouse. Making this happen can be very difficult, though, since there are several very precise elements you must prove. Conversely, if you are the recipient of alimony from your former spouse and find yourself in a situation where your former spouse is seeking to reduce your alimony amount, you need to protect yourself from suffering the reduction or termination. For skilled, knowledgeable assistance with your alimony modification motion, or the defense of your former spouse’s motion to modify or terminate your alimony, contact the New Jersey family law attorneys at Goldstein Law Group. Contact us online or by calling 732-967-6777 to request a confidential consultation.