Even in the age of alimony reform, it is common for a party to be entitled to some form of alimony at the time of divorce. Alimony in New Jersey is gender-neutral, meaning that if the Wife is the breadwinner she may be required to pay alimony to the Husband.
Some of the types of alimony factors considered include: the income levels of the parties, whether additional income may be imputed based upon prior education or experience, the age and health of the parties, the marital standard of living, and the length of the marriage. But what if a case presents a clear-cut alimony case but the other party is not interested in alimony? Can your spouse waive their alimony claim even if they are entitled to it? The short answer is yes, provided that the Marital Settlement Agreement is freely and fairly entered into and contains certain language (known as Anti-Lepis language) stating that alimony will be waived permanently and no future change in circumstance can alter such waiver.
Child Support Cannot be Waived
Interestingly, unlike alimony child support cannot be waived by a parent. This is because the law considered child support as a right belonging to the child. Thus, even though child support payments are made to the recipient spouse, they are (as a matter of law) intended to be utilized for room/board and other appropriate expenses for the child. Accordingly, it is important to remember that child support cannot be waived if due (unless proper consideration for the child is otherwise undertaken). Thus if you enter into an agreement waiving child support it could later come back to haunt you in the form of retroactive payment obligations.
Alimony May be Waived
There are many reasons why a spouse may not wish to pursue alimony. For some, it is a point of pride. For others, perhaps a reflection of some inward guilt. Others still may merely desire a quick divorce and are willing to leave money on the table in order to speed up closure of the marriage and minimize divorce counsel fees. Regardless of the reason, the courts are expected to bind consenting adults to contractual determinations.
To that end, assuming there is no duress, you or your spouse may waive a right to future alimony payments. As noted above, in order to effectuate a permanent waiver it is advisable to include “Crews” language noting the marital lifestyle during the marriage and the impact the divorce will have on the parties’ lifestyle post-divorce (this should be standard in every MSA). More pertinently, the MSA should also include what is known as “Anti-Lepis” language. Lepis is a case that allows changes in child support or alimony based upon “permanent and substantial” changes in circumstances. Your MSA will essentially state that you waive the right for future modification under Lepis, and is thus known as “Anti-Lepis” language.
What if I Want to Waive Alimony?
Although every case is fact-sensitive, you should be very careful about waiving your right to alimony. If a MSA properly addresses the issue then it will be difficult or impossible to later petition the Court for alimony if you waive it. The future is unknown to all of us and it’s possible that circumstances could change (including how you feel about things) in the future but at that point in time not have a recourse. You should consult with a lawyer to understand your alimony obligations or rights before entering into any such MSA. This is particularly true if the marriage has been emotionally or otherwise draining. In such an instance you may be considering waiving alimony merely to move forward, but you will likely come to regret that decision (or see it as another element of control) in the future when options are no longer available. Alimony waiver is a serious step for either party to take: having a divorce lawyer to guide you can help level the playing field.
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If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options. You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.