The mere fact that the former wife is living together is not by itself of proof to reduce or terminate alimony. You have simply gotten past the first prong. The payor spouse still has the burden to prove that the cohabitating couple provide economic benefit to each other, and that they have a marital type relationship. To make this determination, the family court will have to analyze the  nature and extent of the relationship, including how long they have lived together, and the extent to which they have shared their assets and income. If this type of a dependent relationship is proven, then alimony can be reduced or even terminated.
30. My former wife has filed a motion for an increase of alimony after I have been paying her for 17 years. Does my ex-wife has a chance to prevail?
Maybe, nothing is impossible in the world of the family courts. An illustrative case is Murphy v. Murphy, 313 N.J. Super 575 (App. Div. 1998). Here, the ex-wife moved an increase in alimony after 17 years. The wife claimed that she had an increased need, and her former husband made a lot more money. The family court granted her the application for the increase in alimony from $60 to $650. The enraged husband then appealed. The Appellate Division affirmed the decision to increase alimony. However, the Appellate Division did remand the case to assess whether the wife could contribute to her standard of living, and to assess the reasonableness of the increase. In summary, every case is different in the family courts. In the Murphy scenario, one judge might blow off the applicant. However, another judge might not hesitate to grant the ex-wife an increase.
 31. How does the legal concept of the “ability to pay†interplay with the “change of circumstances†test that is required to reduce alimony?
In many alimony reduction cases, the payor loses the motion, but it is clear to the court that he just can’t pay the alimony any more. This is a paradox but this type of legal reasoning is prevalent in many motions to reduce alimony. An interesting case is Mundie v. Mundie, A-3190-07, T13190-07T1. Here, the defendant/husband filed an appeal of the denial of his post divorce judgment application to modify his child support and his limited duration alimony.
The Appellate Division held that the defendant’s alimony obligations may not be modified based on changed circumstances because the PSA prohibited any modification of the alimony payments. This type of clause is called an anti-Lepis clause. Nonetheless, the Appellate Division reversed and remanded the case to permit the family court to fix a reasonable schedule for the payment of his alimony obligations based on the defendant’s current ability to pay. Here, the Appellate Division would not reduce his alimony because the parties had a anti-Lepis clause in the PSA. In the PSA, the parties agreed that the limited duration alimony could not be modified unless defendant became physically disabled or plaintiff cohabited with an unrelated male.
This case illustrates that if you are desperate, and if you can’t meet the Lepis standards to reduce alimony, then your fall back position is to focus on “ability to pay†legal arguments. This type of argument may not be successful in getting the alimony reduced, however, it may buy you some time to get another or get situated. In summary, if you go into court in good faith, but you don’t have a strong Lepis case, then a “ability to pay†game plan may get you some where.
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