Retroactive Alimony Modifications May Only be Available if You are Not A Jerk


Alimony is modifiable as of the date of the change in circumstances leading to the modification (or termination). Or is it? In most cases, the presumptive retroactive date will be the date of filing. However, you can seek an earlier date if you provide sufficient evidence of a change in circumstances. This is critical when filing a motion for modifying or terminating your alimony.

In the recent unpublished case of Corzo v. Corzo, Docket A-1169-22, February 29, 2024, the defendant/ex-husband filed a motion to terminate his alimony retroactive to September 2018 the date he attained full social security retirement age. The trial court granted his motion to terminate but only as of the date that he filed his motion in September 2022.

The parties were divorced in 2015 following a lengthy trial. The defendant had utterly failed to participate in the divorce case. He had ignored orders. He had ultimately been defaulted. Meaning, his ability to seek affirmative relief was denied. He did however participate in the trial.

At the divorce trial, the trial court awarded the plaintiff/ex-Wife open duration alimony and held that both parties had health issues, but that the defendant had been the primary wage earner. The trial court sternly noted that the defendant’s approach to the divorce case was akin to a war of attrition. The court would enter orders, the defendant would ignore/evade the orders, the plaintiff would seek enforcement, the defendant would continue to ignore the orders or pay very little.

Significantly, the trial court not only told the defendant to address his claims of reduced income and what the trial court felt was feigned impoverishment in a post judgment motion, but the trial court further commented on the defendant’s anticipated retirement in September 2018. The judge gave the plaintiff/wife more of the marital assets, since at the time of the divorce the defendant was already 63 years old. The judge did this and said it was appropriate to give the plaintiff more because she would have a greater need for longer.

Not surprisingly, the defendant was soon in arrears. The support enforcement agency (Probation) filed an action to enforce the obligation. The defendant ultimately filed a motion to modify his support. There was a hearing scheduled and which commenced in 2017. However, the plaintiff had a medical emergency during the hearing. The case was adjourned and the defendant ultimately dismissed his request for modification.

Nearly 5 years after that, the defendant filed another motion to terminate his alimony. The defendant’s arrears were almost $400,000. His only income, social security, of which approximately 60% of which was being garnished to pay to the plaintiff. The trial court found that once he reached the age of 70 that he was in fact eligible to have his alimony terminated as that was the age of full social security retirement. Even though the defendant had allegedly retired in 2017, his history of non-compliance, bad faith, and current lack of evidence to establish his former financial circumstances, contradictory certifications to the court, and delay in filing for relief, constituted bad faith and he was not entitled to additional retroactive relief.

On appeal, the defendant argued that he was entitled to a plenary hearing to determine the proper retroactive date and that the trial court should not allow the enhanced garnishment of his social security to continue. Fortunately, the appeals court did not buy into this one bit.

The appeals court held that the trial court properly analyzed the statute. Under N.J.S.A. 2A:34-23(j)(1), there is a rebuttable presumption alimony should be terminated "upon the obligor spouse … attaining full retirement age.". That presumption is rebutted if, and only if, the spouse receiving alimony provides evidence for the court to consider under the factors set forth in the statute. Those factors are:

(a) The ages of the parties at the time of the application for retirement;

(b) The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

(d) Whether the recipient has forgone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

(e) The duration or amount of alimony already paid;

(f) The health of the parties at the time of the retirement application;

(g) Assets of the parties at the time of the retirement application;

(h) Whether the recipient has reached full retirement age as defined in this section;

(i) Sources of income, both earned and unearned, of the parties;

(j) The ability of the recipient to have saved adequately for retirement; and

(k) Any other factors that the court may deem relevant.

In this case, the plaintiff did not even file a response to the defendant’s motion. The trial court had no opposition to consider, but still found that the defendant had reached full social security retirement and was entitled to a termination of alimony. The appeals court agreed that the trial court was correct in its findings that the date of the termination should be the date of the filing of the motion. This is the typical retroactive date because it is the date that it puts everyone on notice of the request.

The appeals court agreed with the trial court’s reasoning that the defendant knew that he could refile and sat on his rights for nearly 5 years. The appeals court further agreed that it would be unfair to the plaintiff to give the defendant retroactive relief. Notably, the defendant also did not provide full and complete financial disclosures to convince either court that there should be a further review of this in his favor. Rather, he argued, unsuccessfully, that the plaintiff should have been compelled to produce her financial information and appear for a hearing.

What is interesting about this case is that if the defendant had not been an obstreperous and recidivist violator of court orders the outcome of this case might have been different. He ignored the entirety of the process during the divorce. He seems to have engaged in intentional conduct to reduce his income. At the very least, he consistently underpaid support for nearly a decade and had substantial arrears that undoubtedly impacted the plaintiff’s ability to live. Then when he went back to court to seek relief, the plaintiff gave him a taste of his own medicine. She ignored his motion. I can only guess that at that point it didn’t matter whether the court terminated his support. She was receiving a small sum from his social security every month and would continue to receive something monthly until the defendant’s death. She probably realized he was never going to pay and wouldn’t pay even if she spent money on an attorney to defend against his motion.

If you are paying alimony and want to seek a modification or termination, you need to provide full and complete financial information. Additionally, if you are asking the court to give you something outside the norm, such as a retroactive modification of support, you need to make sure that you are doing your best to comply. While in this case, it might have been impossible for the defendant to pay off the entirety of the arrears, he should have made a substantial payment towards them.

The lesson here is: Don’t be a jerk. Pay what you owe or at least cooperate with the court. When you go out of your way to not comply, you can’t later ask the court to give you a break.

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