Appellate Court Clarifies Criteria for Decreasing Spousal Support Obligations
In a recent appellate court decision, the court has provided further guidance to a litigant seeking to decrease or terminate their alimony obligation. In Storey v. Storey the Appellate Division held that if a supporting spouse is seeking to decrease a previously ordered support obligation so as to reflect the obligor’s current – and decreased – earnings the obligor who has selected a new, less lucrative career must establish that the benefits he or she derives from the change substantially outweigh the disadvantages to the supported spouse. If the paying spouse cannot make such a showing, then the court is directed to imopute income to that spouse consistent with his or her prior earnings. This procedure is not to be followed, however, when the paying spouse is seeking the modifcation based upona diminished capacity to earn. If it can be shown that a parties’ capacity to earn – as opposed to nothing more than a voluntary redcution of income – then the court is to impute earnings that are consistent with the obligor’s capacity to earn in light of his or her background and experience. For either approach, the burden of proof lies with the party seeking the modification. In light of this decision, careful consideration must be given to the underlying reason for seeking the decrease so that the proper proofs can be presented and the proper level of income is imputed if appropriate.
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3 Replies to “Appellate Court Clarifies Criteria for Decreasing Spousal Support Obligations”
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I have a similar situation like storey vs storey. I moved from NJ to pa a 1 1/2 ago, I got remarried and have a lesser paying job. How could my husband’s salary be taken in account to balance out what my salary was?
Generally, what are the implications of retirement ? How is passive income treated ? How are 401 and other qualified programs treated ? How is pension income treated ?
Dear Mark-
Generally speaking, retirement is a substantial change of circumstances that would warrant a review of your current support obligations. Assuming that you retire at a “typical’ retirement age, the court would look at what your retirement income would be in order to determine if a modification of support is warranted. All forms of income, i.e. pensions, 401K’s, investment income and earned or unearned income would be part of the calculus.
If you wish to discuss this issue in greater detail, please contact my secretary, Jennifer, at 609-895-7380 to schedule a consultation.
Thank you for utilizing our blog-
Very truly yours,
Sandy Durst
T.Sandberg Durst, Esq.
Stark & Stark
993 Lenox Drive, Bldg.2
Lawrenceville, NJ 08648