NJSBA Family Law Section

The Appellate Division has previously indicated on at least two separate occasions that a post-divorce disability might be sufficient to defeat an Anti-Lepis clause seeking to make a waiver of alimony non-modifiable:  See Morris v. Morris, 263 N.J. Super. 237, 241-242 (App. Div. 1993)(Noting that a post-judgment permanent disability might render an Anti-Lepis clause unenforceable on the basis it is no longer fair and equitable under the prevailing circumstances) and Gordon v. Rozenwald, 380 N.J. Super. 55, 69 (App. Div. 2005) (Appellate Division reiterating that a post-divorce disability could render a clause making alimony non-modifiable unenforceable).

Notwithstanding the above, as I read your case, there was no Anti-Lepis language attached to the waiver indicating the waiver was non-modifiable.  Our courts have repeatedly found that a post-divorce disability constitutes a change in circumstance warranting a review of alimony, even where no alimony was awarded at the time of the divorce.  See Lepis v. Lepis, 83 N.J. at 51; Limpert v. Limpert, 119 N.J. Super. 438 (App. Div. 1972); Kirshbaum v. Kirshbaum, 129 N.J.Eq. 429 (Ct. Err. & App. 1941); and Adler v. Adler, 229 N.J. Super. 496 (App. Div. 1988).

So, it doesn't look like a change in the law to me.  If the clause was intended to be an Anti-Lepis provision, then the decision is simply an extension of what was telegraphed in Morris v. Morris and Gordon v. Rozenwald.  Otherwise, it is consistent with Lepis, Limpert, Kirshbaum and Adler.

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Brian G. Paul, Esq.

Certified Matrimonial Law Attorney

Szaferman, Lakind, Blumstein & Blader, P.C.

101 Grovers Mill Road

Lawrenceville, New Jersey  08648

Phone:  609-275-0400

Direct Fax:  609-779-6065

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