Two things in life are certain – death and taxes. But what about alimony?
In some states, a divorce court could award a spouse permanent alimony, or permanent periodic alimony, meaning the award of payment continues until the death of either spouse or the remarriage of the receiving spouse. In this sense, permanent alimony does not go on forever, but can be a great obstacle to divorced spouses that want to remarry because of the financial burden to provide indefinite support to their exes.
Permanent periodic alimony or permanent alimony is based on one spouse’s need for support, and the other’s ability to pay. The ability of a spouse to pay is based upon their present earnings, not on future earnings potential. Just like child support, alimony is often paid through divorce court ordered paycheck deductions.
Therein lies the problem – the divorce court has almost unbridled discretion in considering the nature of the permanent alimony payments, as long as it considers factors like the duration of the marriage, the couple’s standard of living during the marriage, the ages, physical and emotional health of the spouses and the financial resources of the spouses, combined and separately. Unless the divorcing couple can arrange support agreements in mediation before the divorce begins, permanent periodic alimony can become a very contentious issue, and horror stories abound.
That’s why there is a groundswell of grassroots movements to reform permanent or permanent periodic alimony laws, known as alimony modification, in the United States, led by states like Florida, Massachusetts, New Jersey and Connecticut. Groups in those states and in other parts of the country contend that times have changed, and the divorce court must change, too. Alimony modification should evolve as society has evolved, they say. It’s not the 1950’s “Father Knows Best” or the 1960’s “Mad Men” eras anymore. More women are in the workforce now and more wives are the chief family breadwinners, making more than their husbands, and unlike before, it’s not just the women that need support from their husbands, but the mirror image.
So, back to the question in the title of this post – is permanent alimony permanent? The answer has to be, slowly but increasingly, no. Alimony modification in the divorce court is underway across America.
Under the prevailing law in most states, permanent alimony can only be reduced or terminated altogether by the divorce court if there is a Lepis, or change of circumstances. That’s the only circumstance for alimony modification. One of the foundations of family law in New Jersey, for instance, is that there must be changed circumstances to justify a permanent alimony modification. There are many cases where a spouse would not satisfy the Lepis requirements to justify a change in permanent alimony or permanent periodic alimony payments. If a spouse can’t satisfy Lepsis they could file an application with the court to reduce or terminate permanent alimony or permanent periodic alimony payments based on the principles of equity and fairness. If some type of life event or events occur to make the enforcement of a property settlement agreement neither fair nor equitable, then a strong argument can be made that it is the responsibility of the court to review the permanent alimony order.
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