It is well known in the world that we call “family law” that alimony and child support, once court-ordered, can be modified or terminated upon substantial (and usually permanent) changed circumstances. Of course, that begs the question, “what is a substantial change in circumstance”? Well, I’m not going to go into a detailed list here, but I shall give you a few examples: (1) you are paying alimony to your spouse and you involuntarily lose your job and although you have made herculean efforts to obtain unemployment, you remain unemployed beyond your control and, as such, cannot afford your alimony; (2) you are receiving alimony and you are unfortunately diagnosed with an illness that permanently decreases or eliminates your ability to work and now you need more alimony to financially survive; (3) you are paying alimony to your spouse when you suddenly find out your spouse has obtained new employment on a permanent basis that makes it completely inequitable for you to remain obligated to continue to pay your spouse alimony. Of course, these are just a few examples. For those of you interested in a more detailed discussion about changed circumstances warranting a modification of alimony and/or child support, I recommend a good read of the seminal New Jersey Supreme Court case of Lepis v. Lepis.
Now that I have addressed the law about modification upon substantial and usually permanent changed circumstances, I am going to flip the coin and discuss an exception to the rule (yes, many exceptions to rules exist in the world of “family law”. If two divorcing spouses determine that they do not want the law of changed circumstances to apply to their divorce, they can actually agree as part of their divorce settlement that any alimony or child support be non-modifiable. Yes, divorcing spouses can actually agree that the law of changed circumstances will not apply to their case and that alimony and child support cannot be modified under any circumstances. It is important to note that a court cannot and will not order a non-modifiability clause if the case proceeds to trial. Only the two spouses, by way of a matrimonial settlement agreement in lieu of trial, can agree upon a non-modifiability clause that the court’s will then enforce if the Matrimonial Agreement is subsequently brought to the court’s attention in a subsequent post-divorce application.
What are the benefits of a non-modifiability clause? There can be many. By far the most attractive to people is the definitiveness of the clause and the fact that they, in theory, can never be bought back to Court for an increase or decrease in their alimony obligation or the amount of alimony they receive.
However, as attractive as a non-modifiability clause may be when reaching a settlement agreement upon divorce, such clauses come with inherent risks that must be considered against the benefits when deciding if an anti-modification clause is the right thing for you to do in your matrimonial settlement agreement. An experienced lawyer can go over these risks with you in the context of your own personal circumstances to determine if an anti-modification clause is the most beneficial way to settle your case in your favor, or if the risks of such a clause are too high to make such a clause beneficial to you.
The inherent risk of a non-modifiability clause is exemplified in the recent unpublished Appellate Division case of Visconti v. Visconti. There, the parties entered into a Matrimonial Settlement Agreement that had a non-modifiability clause with respect to alimony and child support for a period of approximately three years. After that three-year period, both the alimony and child support would become modifiable based on changed circumstances as addressed above. Well, guess what happened only six months after the divorce was entered? The husband, who was paying alimony and child support, alleged that a decrease in his income, coupled with his former wife’s move out of state, had rendered him financially unable to continue paying alimony and child support at the court-ordered (and now non-modifiable) amount. Sparing the readers of this blog the more hum drum details of the case, needless to say many motions and even an appeal was filed wherein the husband argued that despite the non-modifiability clause in the Matrimonial Settlement Agreement, the law of “equity” demanded that he receive a modification of alimony and child support based on changed circumstances.
After probably countless dollars attempting to argue his case in front of two different judges and the Appellate Division, one thing was crystal clear: No court was going to even examine his changed circumstances argument for the three year period of time that he had agreed to a non-modifiability clause, regardless of his circumstances or how much money he spent attempting to convince the Court otherwise. Of course, after the three-year clause concerning non-modifiability expired, the courts did ultimately decrease his obligation based on changed circumstances. However, no court, including the Appellate Division would consider modifying his alimony or child support during the period when the parties had agreed to a non-modifiability clause.
What is the lesson to be learned? Be careful what you wish/bargain for with respect to a non-modifiability clause when negotiating your Matrimonial Settlement Agreement. While it may seem like a great option that provides security, nobody can predict the future and control whether changed circumstances may suddenly arise that leave them in a situation where they desperately need a modification of support that they have now forever bargained away.I will end this blog with the following message. Non-modifiability language in a Matrimonial Agreement may be the perfect way to settle your case. It may also be the worst way to settle your case. The only way to know for sure is to consult with an experienced attorney who can examine the exact circumstances of your case and provide you with the legal insight you need to make the right decision in your best interest.
 While I will not go into detail herein, I must advise that not all courts will accept non-modifiability clauses pertaining to child support, more likely so if the non-modifiability clause could possibly result in the child/children being possibly denied child support to which they are entitled. The reasoning behind this is because the courts, not the parents, have the ultimate authority to govern child support. Thus, in reality, a non-modifiability clause pertaining to child support should be examined with close scrutiny by an attorney, as many will not pass muster with a Court if challenged. However, that is a blog for another day.