When you are required to pay alimony, a former spouse taking on a new husband or wife usually means an end to support payments. But that’s not the case for one New Jersey couple who wound up in court after the spouse receiving alimony (in this case, the ex-husband) claimed he is still owed spousal support, despite his remarriage. A judge agreed with him, and now his ex-wife has lost three motions trying to prove otherwise.
Why the exception? Under current New Jersey family law, N.J.S.A. 2A:34-25, “Termination of alimony,” mandates termination of alimony obligations when a former spouse’s remarries. However, in the ruling of Schaefer v. Kamery, the judge concluded that, based on the language of their divorce settlement, the parties had bargained and agreed upon an “anti-Lepis clause,” a legal provision that specifies no circumstance other than death affect the spouse’s right to receive alimony.
In the ruling, Somerset County Superior Court Judges Reisner and Hoffman wrote:
The parties married in 1986 and had two sons, now twenty-four and twenty-one years old. On January 29, 2007, the parties entered into a thirty-page property settlement agreement (PSA) addressing various issues, including equitable distribution, alimony, and child support. A dual judgment of divorce with the PSA attached was entered the same date. The PSA required defendant to pay plaintiff term alimony of $20,000 a year for five years and $10,000 in the sixth year. It further required plaintiff to pay defendant $236 per week in child support. The parties also agreed to equally share their children s post-education costs. Relevant to this appeal, the PSA contained the following anti-Lepis clause1:
Payment of alimony shall cease only upon the first to occur of: (1) the expiration of the alimony term set forth above; (2) Husband’s death; or (3) Wife’s death. The parties agree Wife’s involuntary termination from her current employer or permanent disability preventing her continued employment shall be a changed circumstance justifying review of Wife’s alimony obligation. No change in Husband’s circumstances other than death shall constitute a changed circumstance affecting Husband’s right to alimony.
The takeaway for your divorce? Before giving your consent and signing off on any document, think very carefully about how each part of your divorce settlement will affect your life 5, 10, and 20 or more years in the future. In some cases, of course, couples have prenuptial agreements that spell out the pre-agreed upon support terms, or during negotiations, one spouse gives up certain assets during divorce negotiations in order to get this kind of protected spousal support.
Having a good divorce lawyer on your side can help you arrive at a fair alimony arrangement given your circumstances, and — importantly — explain the legal language of divorce in ways that you can understand.
It’s not clear in this case why the ex-wife agreed to this clause, but the court has ruled that both parties willingly negotiated and signed off on it. And now, no matter how much she regrets her approval to this document, she is obligated to pay.