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  • 1.  Reopening judgment / interesting post-J issue on undiagnosed medical condition

    Posted 11-15-2017 12:29 PM
    In 2005, client (Wife) agreed to 12 year term of alimony after a 12 year marriage. Term expires in January. It has a solid anti-Lepis clause. Husband earns $275,000+, she was stay-at-home parent.

    Late last year, client was diagnosed with progressive systemic sclerosis, a rheumatological disorder in which the immune system attacks the body. "Healthy tissue is destroyed because the immune system mistakenly thinks it?s a foreign substance or infection." It has rendered her unable to work (/unable to function at times). She doesn't have enough work credits to qualify for SSD. Her rheumatologist has stated unequivocally that she has had the disease since at least 2003 (prior to the divorce), but it was only diagnosed last year when she started having symptoms.

    Another Family Law attorney told her there's nothing that can be done legally because the anti-Lepis language is so strong. I disagree. I think a motion under 4:50-1 is appropriate. Agree? (1) Anyone know a case off the top of their head (pro or con) that addresses the issue?  (2) Assuming the PSA could be vacated on this basis, would a court apply the law in effect in 2005, or current? I think she has a claim to permanent / open durational alimony either way, but in 2005 it would've been a stronger claim. Any thoughts at all appreciated.

    Thanks,



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    David Perry Davis, Esq.
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    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223



  • 2.  RE: Reopening judgment / interesting post-J issue on undiagnosed medical condition

    Posted 11-15-2017 12:47 PM
    David, I can see arguments both ways. Look at the language of the then-existing LDA...at end it talks about extraordinary circumstances. I think you may have a shot at it. I can see you'll engender sympathy from the trier of fact, but you never know. Due to the severity of her situation, it's worth a shot in my view, although you should let her know there's a chance she will not succeed.

    Good luck...Fran Aster
    Francine M. Aster, Esq.
     Law Offices of Francine M. Aster, Esq.
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  • 3.  RE: Reopening judgment / interesting post-J issue on undiagnosed medical condition

    Posted 11-15-2017 02:23 PM

    David:

     

    I am at NJAJ Meadowlands seminars through tomorrow  but I do have a brief on extending LDA if  you want to see it. Let  me know. It is difficult to do.

     

    Robert E. Goldstein, Esq.
    Drescher & Cheslow, P.A.

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  • 4.  RE: Reopening judgment / interesting post-J issue on undiagnosed medical condition

    Posted 11-16-2017 04:24 PM
    It is an unforeseen circumstance, and one that could not have been known back when they divorced.  Seems like its worth bringing the motion I would love to know the outcome if you do.

    Gerri Duswalt

    GERALDENE SHERR DUSWALT, ESQ.
    ATTORNEY AT LAW
    Admitted in New York and New Jersey

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  • 5.  RE: Reopening judgment / interesting post-J issue on undiagnosed medical condition

    Posted 11-21-2017 08:35 PM
    Thanks for the replies, on-list and off.

    I don't think I was 100% clear - based on her having an undiagnosed, serious medical condition, my hope is to reopen the judgment. In other words, not challenging the parameters of the anti-Lepis clause directly, but "going around it" under Rule 4:50-1 by arguing the agreement as to the term of alimony should be vacated (not modified) since it was based on the premise that she would be employable and there was no way (via diligent efforts, etc) she would have known about it until recently.

    I'll keep those of you who asked posted.


    At 04:24 PM 11/16/2017, you wrote:
    It is an unforeseen circumstance, and one that could not have been known back when they divorced. Seems like its worth bringing the motion I... -posted to the "Family Law Section" community



    <x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223

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