In New Jersey, alimony and child support obligations are generally subject to modification based on “changed circumstances.” The right to seek modification, and the steps one must take when doing so, were established in 1980 by the New Jersey Supreme Court in the case of Lepis v. Lepis. Typically, modification of an alimony or child support obligation requires a post-divorce application to the Court if the parties are not able to agree on whether to modify the support obligation and/or by how much. Filing a post-divorce application to increase or decrease a support obligation can be an expensive endeavor, especially if the Court orders a hearing on the issue.
In an effort to avoid the expense and anxiety of post-divorce litigation, parties sometimes negotiate what is referred to as an “anti-Lepis clause” in their Marital Settlement Agreements. An “anti-Lepis clause” provides that the parties waive the right to modify the alimony and/or child support provisions of their Marital Settlement Agreement. For example, a typical clause may state:
No court shall have jurisdiction or power to modify this provision for the [designated term]. The parties have considered any and all foreseeable events and have also considered that there may be unforeseeable events occurring to either of them. Each has specifically considered increases or decreases in the cost of living, increases or decreases in their income, the possible loss of or inability to secure employment, prospective changes of employment by either of them, the subsequent acquisition or loss of assets by either of them, the dissipation (whether negligently, purposely, accidentally, or by any other circumstances) of the assets received by each of them as and for equitable distribution in this matter, and any other event which may or which does change the quality of economic life.
Notably, the clause specifically eliminates a party’s ability to ask for modification based on a change of financial circumstances, which otherwise would be grounds for modification pursuant to the Lepis case.
As noted in the recent New Jersey case of Rosenberg v. Rosenberg, in order for an anti-Lepis clause to be enforceable, the parties must have agreed to include the clause in their agreement “with full knowledge of all present and reasonably foreseeable future circumstances” and “bargain[ed] for a fixed payment or establish[ed] the criteria for payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement.”
The waiver of the right to seek modification does not have to be a total and complete waiver. Parties can agree that certain specific circumstances would still permit a modification, but all other changes in circumstances would not. As the Rosenberg Court held though, one should expect the specific language of an anti-Lepis clause to be enforced. Unless the specific agreed-upon circumstances in the MSA have been met, there would be no basis to modify the support obligation.
Contact us if you are considering divorce or in the process of settling your divorce, take great care that all agreements are reviewed by an experienced matrimonial attorney to ensure they meet your needs and are enforceable as intended.
