In summary, in any Lepis case that centers around a “change in circumstances†based on an illness or medical condition, then medical professionals must be brought in to testify. The doctor will have to prepare an expert’s report, and also be willing to testify about his/her findings at the Lepis plenary hearing. In my experience most doctors require a $2,500 to $5,000 retainer to prepare a report of this nature, and to appear at trial. Nonetheless, if the alimony obligation is oppressive, then the high retainer fees to the evaluating physician may well be worth. In my experience, it is almost impossible for an applicant to prevail in an alimony reduction case based on an illness or medical condition, unless a qualified medical expert is brought in to testify at the Lepis hearing.
23. I was declared to be disabled by the Social Security Administration. Does this event constitute a “change of circumstances†to warrant a termination of alimony?
If a person is declared disabled by SSA, then this event constitutes a change of circumstances to justify a reduction or termination of alimony. In the case of Golian v. Golian, 344 N.J. Super. 337 (2001), the court held that a declaration by the Social Security Administration (SSA) that the wife was disabled and eligible to receive social security benefits was prima facie proof of a disability. Moreover, the court held that a declaration of eligibility to receive social security also constituted a change of circumstances to enable the application to receive a Lepis hearing.
24. Can a person insert an anti-modification of alimony clause into the property settlement agreement?
In many cases, the parties will insert a clause in the property settlement agreement that would prevent any modification of alimony even if there is a potential chance of circumstances in the future. This type of clause is known as an Anti-Lepis clause. These types of clause have been upheld by the courts. However, the courts will not permit the parties to bargain away the courts equitable powers.
25. Can alimony be extended?
In most cases no. However, some property settlement agreements provide that a spouse may be entitled to alimony after a certain number of years. A dependent spouse will have to file an application for an increase in alimony. The dependent spouse will have to prove a “change of circumstances†to justify an extension of alimony. The courts analyze these applications on a case by case basis. The court will make this determination based on the payor’s ability to pay, both parties’ respective income’s, and the dependent spouses needs. Additionally, rehabilitative alimony can be extended beyond the expiration date as specified in the property settlement agreement. The standard once again is whether there has been a “change of circumstances.â€
26. Can my former spouse bankrupt his alimony obligations?
If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree is not dischargeable. In short, a husband can’t wipe off an alimony obligation in a bankruptcy case.
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