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Divorce and Anti-Lepis Clauses - Why a Blanket Application May Be an Error by the Court

Mar 25, 2016 @ 10:53 AM — by Michael Green

Divorce and Anti-Lepis Clauses in Property Settlement Agreements - When a Blanket Application May Be an Error by a Court.  

Anti-Lepis Clauses in Divorce Agreements are essentially attempts to deal with the Lepis case that generally allowed for modification of terms of support in agreements in the future if there was a substantial change in circumstances.  An anti-Lepis clause is a clause that prohibits modification of the terms of alimony in the future regardless of whether or not there was a substantial change in circumstance.

For example, the following arguments could apply, if an agreement is silent as to a term regarding alimony, such as cohabitation, and the Court applies an anti-Lepis clause in the agreement as to cohabitation, there may be an issue as to whether or not the the anti-Lepis clause should have been applied.

1.         Blanket use of Anti-Lepis clauses in cases with a change of circumstance is  against public policy;

2.         When an agreement is silent as to termination of alimony with cohabitation, as  would be the case with the agreement being silent as to termination of alimony with remarriage, the alimony statute should apply;

3.         Modification of alimony based on cohabitation is analogous to remarriage, not  loss of income or employment, as support is alleged to be given by a third  party and a party to the agreement.  Allowing Plaintiff to reap the benefit of       support from both sources is non-sensical, inequitable and antithetical to the law.

First, New Jersey case law makes it clear that anti-Lepis clauses that seek to preclude the exercise of the court's equitable responsibility to review, and if warranted, to modify support obligations in response to changed circumstances is contrary to the public policy of New Jersey. See Smith v. Smith, 261 N.J. Super. 198 (Ch. Div. 1992). Here, the family court held that an anti-Lepis clause that prohibited the modification of a property settlement agreement regardless of any changed circumstances was void under the laws and public policy of New Jersey. The Smith court held that the blanket non-modifiability provisions were contrary to public policy because they circumvented the court's duty to make adjustments based on changed circumstances. See also Morris v. Morris, 263 NJ Super 237 (App. Div. 1993), Savarese v. Corcoran, 311 N.J. Super. 240 (Ch. Div. 1997).Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).The bottom line is that even if there are anti-Lepis provisions in a property settlement agreement, relief based on a change of circumstance can still be granted.

Even in cases where an anti-Lepis clause is in an agreement as to alimony, if a party loses employment, the Court still may consider whether or not that is a substantial change in circumstance to allow for modification.Certainly, then, in the case of cohabitation, the Court should consider a change in circumstance. Typically, a dispute about whether a spouse's cohabitation is a changed circumstance "justif[ies] discovery and a hearing for modification of alimony." Boardman v. Boardman, 314 N.J. Super. 340, 347 (App. Div. 1998) (citing Gayet v. Gayet, 92 N.J. at 154-55).

            A supporting spouse's proof of cohabitation creates a rebuttable presumption of changed circumstances. Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998). Once established, "the burden of proof, which is ordinarily on the party seeking modification, shifts to the dependent spouse." Id. at 249. This includes the lack of economic benefit and continued need for support. Ibid.

Second, the Court may have erred by applying a non-modification clause in the agreement to a request for modification based on cohabitation specifically, a term that the agreement is silent on.  Existing law should apply where the agreement is silent. See Ozolins v. Ozolins, 308 N.J. Super. 243, 248 (App. Div. 1998).  If the living together arose after September 10, 2014, the effective date of the new alimony statutory amendment  [N.J.S.A. 2A:34-23(n)] that dispenses with  proof of economic interdependence between the alleged cohabitants,    Schlumpf v. Schlumpf, New Jersey App. Div., February 16, 2015, and the alimony statute which allows for modification of alimony with cohabitation should apply. If the agreement was silent as to modification of alimony in the case of marriage, certainly the Court would apply the statute and not continue alimony if the party receiving alimony remarried.

Courts view cohabitation as “tantamount to a marriage.”  Arguably, therefore, the facts here are no different than an agreement being silent as to marriage and having a party’s alimony continue after marriage.  It could be argued that it would be a non-sensical result that also defies the law in New Jersey to apply an anti-Lepis clause to cohabitation when the agreement is silent as to it.

Third, cohabitation is a term that presupposes that additional support is being given by a third party as opposed to an application to modify alimony based on the loss of income by a party to the agreement.  If there is in fact support being paid by a third party paramour, no Court in equity could possibly come to a decision that would allow for support to be given to the party by BOTH her live-in paramour and her ex-husband, such that a party is allowed to reap the benefit of both.  The result would be completely inequitable and absurd.  This is not a case where a party loses their employment and a modification is sought which would reduce alimony support and not be replaced with other support, which is again why why cohabitation should be considered analogous to remarriage.

The Court cannot walk away from its duty to be fair and render an equitable decision simply because there is an anti-Lepis clause.

If you wish to file a motion regarding the modification of alimony or termination of alimony, call our office to speak to Michael S. Green, who is experienced in motion practice regarding the modification or termination of alimony, an NJ divorce lawyer or NJ divorce attorney, at 732-390-0480 or 201-242-1119.  Night and weekend appointments are available.

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