esearch shows that U.S. workers’ average job tenure is 4.6 years. Given the fact the average worker in our economy can expect to change jobs on a relatively regular basis, workers who pay alimony often encounter problems related to maintaining these obligations in light of lapses in employment. In cases where employment is disrupted and by association the ability to pay alimony, a person may seek a modification of alimony by showing changed circumstances have substantially impaired his or her ability to support himself or herself. Courts have discretion in these matters and apply the factors outlined in Lepis v. Lepis, 83 N.J. 139 (1980) which outline circumstances that may warrant a modification of alimony. These factors include: (1) an increase in the cost of living; (2) increase or decrease in the supporting spouse’s income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse’s loss of a house or apartment; (5) the dependent spouse’s cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law. One factor that is not explicitly considered in Lepis, involves a situation whereby a spouse experiences sporadic periods of voluntary unemployment thus hindering his ability to pay alimony.
A recent case, Stankiewicz v. Califri, No. A-1218-14T3 (N.J. Super. Ct. App. Div. Dec. 17, 2015), reviewed the issue of whether an ex-spouse was entitled to a downward modification of alimony in light of his continued voluntary unemployment. In Stankiewicz, the ex-husband, paying alimony sought a downward modification of his obligation after being terminated from various jobs and failing to find work promptly. The court noted that “although defendant established that he was “involuntarily terminated” from his employment in July 2008 and December 2012, he did not establish that he was “involuntarily terminated” in September 2013. Nor did defendant explain why he failed to secure any employment during his periods of unemployment, and he provided no evidence whatsoever of his attempts to secure employment or his employability.” Therefore, the Stankiewicz court interpreted these repeated and prolonged gaps in employment to mean that the obligated spouse was not the victim of a poor run of luck in the job market (which may have warranted a downward modification) rather it was more likely his spotty employment record was by his design. To this end the court noted, “‘[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one’s family.” Effectively the lower court’s decision denying the downward modification of alimony was upheld because the obligated spouse was voluntarily unemployed, therefore, this was a not a permanent change in circumstances beyond his control, which may have warranted a modification. The main takeaway from this decision indicates that New Jersey courts may begin to scrutinize situations whereby an obligated spouse may be intentionally diminishing his or her own earning capacity to avoid paying a higher amount of alimony.
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