Recently my ex-wife inherited substantial amount of asset where I got diagnosed with a chronic condition that s subject to automatic eligibility for disability under Social Security requirments. The chronic but potentially serious condition doesn't affect my job as of now but I have to check with my doctor every three months for any changes. I don't want to wait for bad news so I would like to seek help, potential treatments and medical tests outside of the US but it costs money.
Alimony is subject to modification on a showing of a substantial change in circumstances affecting your ability to pay, or, in the case of your ex, making the receipt of alimony no longer necessary to support her needs. These changes, however, must be permanent, not temporary, and must be ripe. It is very difficult in this type of forum to tell you what your changes are. Given your circumstances, your best choice would be to meet with an attorney (or two, or three...) and let them take a look at all of the relevant documents in your case, including the document that spells out the terms of your obligation to pay alimony, and any subsequent orders. You'd also need to have an in-dept discussion about your circumstances and what you believe your ex's are. If you make an application, and the Court in fact finds that circumstances have changed, the inquiry does not end there, and in fact could take several months. So it would be wise to see someone immediately and get the ball rolling.
I agree with Ms. Bernstein's answer. Alimony is meant to keep a person in a reasonably comparative standard of living as the person had during the marriage. If the ex wife now lives substantially more comfortably, and your circumstances may be changing, you may be able to prove a change of circumstances. This may require some medical evidence or other evidence that your disease may affect your employability, or at least your hours and ability to perform the type of work you are currently doing.
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Based upon her inheritance you can seek a modification. You should do so.
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Alimony is generally subject to review based on "changed circumstances." You have indicated two possible changed circumstances that may justify modifying, perhaps terminating, alimony: (1) your ex-wife's receipt of a substantial inheritance; and (2) your disability. I will address the general standard governing modification of alimony and then each of your specific issues in turn.
As held in the 1980 New Jersey Supreme Court case of Lepis v. Lepis, the standard for a change in the amount of support payments is that “the party seeking modification has the burden of showing such ‘changed circumstances’ as would warrant relief from the support or maintenance provisions involved.”
Well-recognized examples of changed circumstances include: (1) an increase in the cost of living; (2) increase or decrease in the supporting spouse’s income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse’s loss of a house or apartment; (5) the dependent spouse’s cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law. Nevertheless, there is no real limitation on what may qualify as changed circumstances when it comes to alimony; the only requirement is that it have some bearing on the supported spouse's need for alimony or the supporting spouse's ability to pay.
Furthermore, under N.J.S.A. 2A:34-23 as revised in September 2014, the Court must review a ten-factor test when a non-self-employed individual seeks modification of his alimony obligation. Although there is not enough space to type out the factors in full, factors (7) and (8) seem particularly relevant here:
"(7) Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;
(8) The reasons for any change in either party’s financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party’s financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order[.]"
Your ex-wife's receipt of a significant inheritance seems to clearly justify reexamining your alimony obligation. It may even justify terminating your obligation entirely. Ultimately, the purpose of alimony is to provide the supported spouse with a "lifestyle reasonable comparable to the marital lifestyle." If alimony is no longer necessary for her to maintain that lifestyle, then it should be terminated immediately.
As to your disability, In the 2001 Appellate Division case of Golian v. Golian, the Appellate Division held that an adjudication of disability by the Social Security Administration constitutes prima facie evidence of a litigant’s inability to be gainfully employed for support purposes. Once proof of the adjudication has been supplied, the burden shifts to the opposing party to rebut the presumption. However, under the 2012 Chancery Division case of Golian v. Golian, the party alleging disability must produce medical evidence to support his inability to work. The 2013 Appellate Division case of Villanueva v. Zimmer further isolated the decision in Golian. In general, disability will justify modifying alimony to the extent it affects your ability to pay. However, bear in mind that the New Jersey Supreme Court in Lepis v. Lepis noted: "Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.”
I strongly recommend that you take this matter seriously and hire an attorney. Significant rights are at stake. Please reach out to one of the lawyers here on Avvo. Many of us are willing to sit down with you free of charge to explore the facts, explain the law, and address the likely timeline, costs, and range of possible outcomes.
Unless you have signed a retainer agreement with my law firm, I am not your attorney and we do not have an attorney-client relationship. Any statements here set forth general principles only; I cannot guarantee that those statements are applicable to the specific facts of your case or that a court of law will agree with those statements. It is not possible to provide sufficient legal guidance without the benefit of a free in-depth case evaluation at my office in Somerville, NJ. Unfortunately, I cannot perform a sufficient evaluation based on a paragraph or two here on Avvo.
In setting forth alimony, the court shall consider, but not be limited to, the following factors:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
(13) The nature, amount, and length of pendente lite support paid, if any; and
(14) Any other factors which the court may deem relevant.
Alimony may be modified if you prove that there has been a substantial change of circumstances. This change cannot be temporary, and has to be permanent. Permanent disability can be such a substantial change of circumstances so long as it rises to the level that you can no longer work. This will generally be proven by a report or your receipt of SSD. Though it seems your circumstances have not necessarily changed at this time, your current circumstances plus you ex-spouse now living a greater lifestyle may rise to the level of a substantial change in circumstances. Modification actions are very fact sensitive, so it would be necessary to discuss you case at greater length. You should consult an experienced family law attorney to ensure that your interests are protected.
Please mark as "Helpful" or "Best Answer" if our advice helped you. This information is based upon the limited facts you presented. My advice is based on New Jersey law and may be different if I find that the facts presented are different. Additionally, this answer does not contain any confidential information nor does it create any attorney/client relationship.
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