Your spouse wants to settle the divorce without alimony. In return, they’re willing to give you a larger share of the marital savings. You’ve done some calculations, and the offer doesn’t look unreasonable.
There’s just one thing bothering you…
What if you need financial help later?
New Jersey law allows spouses to waive alimony in a divorce settlement. Courts generally enforce agreements made voluntarily and with proper understanding of the financial terms. Yet a waiver isn’t immune from every possible legal challenge.
Before signing, you should know how these agreements work, what makes them enforceable, and why the assets you receive can matter just as much as the support you surrender.
Can You Legally Waive Alimony in New Jersey?
Yes. New Jersey allows married couples to decide for themselves whether alimony should be part of their divorce settlement.
You might agree that neither spouse will receive support. In other marriages, only one spouse gives up the right to seek alimony.
The decision usually becomes part of a marital settlement agreement (MSA), also known as a property settlement agreement (PSA). Once incorporated into the divorce judgment, its terms generally become enforceable.
However agreeing to waive alimony is different from having no legal basis to receive it.
Suppose you and your spouse earn similar salaries. You’ve both maintained your careers throughout the marriage, and neither depends on the other financially. A mutual waiver might be a practical choice.
Now imagine you left your job twelve years ago to raise children. Your spouse continued working and now earns considerably more than you could reasonably expect to make.
You can still agree to waive alimony. Whether you should is a separate question.
New Jersey’s alimony statute, N.J.S.A. 2A:34-23, directs courts to examine financial need, earning capacity, marital lifestyle and other circumstances when making support decisions.
Those factors can help you understand what you might be giving up through a negotiated waiver.
Can You Request Alimony Years After Signing a Waiver?
Usually the purpose of waiving alimony is to bring the issue to an end. But an important New Jersey case shows why a complete answer requires more than a simple yes or no.
In Fattore v. Fattore, 458 N.J. Super. 75 (App. Div. 2019), Margaret and Frank Fattore divorced after a 35-year marriage.
Their settlement included a mutual waiver of alimony. Margaret was also entitled to receive part of Frank’s military pension.
That pension benefit was significant to the overall agreement.
Years later, Frank’s receipt of military disability benefits prevented Margaret from collecting the pension payments she had expected.
Margaret sought relief from the court.
Federal law prevented the court from simply ordering reimbursement of the lost military retirement benefits. However, the Appellate Division found that the loss of the bargained-for pension benefit could justify reconsidering alimony.
The court permitted the matter to return for further proceedings.
The distinction matters.
Margaret wasn’t merely asking for more support because her expenses had increased. A financial benefit that formed part of the original bargain had unexpectedly disappeared.
Does the Fattore Decision Mean Your Waiver Can Always Be Reopened?
No. That would take the decision much further than the court intended.
The unusual facts of Fattore involved the loss of a negotiated pension benefit. The decision doesn’t give every divorced spouse another opportunity to seek alimony after an ordinary financial setback.
For example, losing your job several years after a complete waiver doesn’t automatically restore your right to support.
Neither does discovering that your former spouse now earns considerably more money.
The legal question may involve whether the original waiver remains enforceable, whether a significant part of its consideration failed, and whether some other recognized basis for relief exists.
Family law attorney Charles F. Vuotto examines this problem in Alimony Waivers and Modifiability.
His analysis explains why alimony waivers involve both contract principles and the court’s authority to address fairness in matrimonial matters.
An important practical point follows from the case.
If you’re waiving alimony in return for a pension, investment account, business buyout, or another substantial benefit, you should understand how that benefit will actually reach you.
An agreement promising future funds is not necessarily the same as having those funds available today.
Can an Anti-Lepis Clause Make Your Alimony Agreement Final?
You may read a term anti-Lepis clause while going through a proposed settlement.
It refers to a contractual provision that restricts future changes to an agreed support arrangement.
The name comes from Lepis v. Lepis, 83 N.J. 139 (1980), a New Jersey Supreme Court decision addressing support modifications based on changed circumstances.
Ordinarily, someone with an existing alimony obligation may ask the court to review that obligation when qualifying circumstances change.
An anti-Lepis clause attempts to limit that right under standards the spouses have negotiated.
For instance, the parties might agree that a particular support amount will not change merely because the paying spouse experiences a reduction in income.
New Jersey courts have recognized such provisions, including in Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993).
Yet their enforceability is not unlimited…
Courts retain equitable authority in: exceptional circumstances and the outcome depends on the agreement’s language and applicable law.
An anti-Lepis clause is also not the same as a complete alimony waiver. One restricts modification of an agreed obligation. The other may surrender the right to support itself.
If either provision appears in your settlement, ask what it means before accepting it. You shouldn’t discover its consequences after the divorce is final.
Should You Accept More Property Instead of Monthly Alimony?
Let’s say your spouse offers you an additional $180,000 from the marital estate if you agree to waive support.
You could accept the money now rather than depend on payments arriving every month. There would be no need to monitor your former spouse’s earnings or worry about missed alimony checks.
That arrangement has obvious appeal.
But before accepting, compare the offer with what alimony might realistically provide.
If you were otherwise entitled to $3,000 monthly for five years, the total would be $180,000. That doesn’t necessarily make the two arrangements equal.
The lump sum arrives sooner. The payments arrive gradually. Taxes, investment returns, inflation and the possibility of future modification can change their relative value.
The type of property matters, too.
An extra $180,000 in a retirement account is different from receiving the same amount in readily available savings. A marital home might carry substantial equity while requiring thousands of dollars in annual expenses.
You also need to consider what would happen if you couldn’t sell an asset when you needed cash.
New Jersey’s equitable distribution law, N.J.S.A. 2A:34-23.1, considers the spouses’ economic circumstances and several other factors when dividing marital property.
You don’t have to accept an asset-for-alimony exchange simply because the numbers initially look attractive.
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Need Legal Advice With Your Divorce or Separation?
An alimony waiver should reflect your actual financial circumstances, not just the settlement amount your spouse has offered.
At The Law Office of Jennifer J. McCaskill, we help clients understand their options for spousal support and negotiate divorce settlements that account for their financial needs.
Call 732-647-9256 to request a free consultation with our Monmouth County family law team.
Could You Waive Alimony While Still Receiving Child Support?
Yes. You can give up a claim for spousal support without necessarily affecting your children’s right to financial support.
Alimony and child support address different obligations.
Alimony concerns financial support between spouses or former spouses. Child support concerns a parent’s responsibility to help meet a child’s needs.
Imagine you and your spouse have similar incomes and decide neither needs alimony.
Your children will primarily live with you, and the parenting arrangement results in a child support obligation.
Your agreement to waive spousal support doesn’t automatically eliminate that obligation.
Parents generally cannot bargain away a child’s right to support as part of a divorce settlement.
This matters when your spouse offers extra marital property in return for eliminating all future payments.
You need to distinguish what you’re receiving for your own financial interests from the support arrangements established for your children.
If the proposed settlement combines these issues, ask for each obligation to be addressed clearly.
Do You Need Help Reviewing an Alimony Waiver in New Jersey?
At The Law Office of Jennifer J. McCaskill, we assist clients with divorce settlements, alimony negotiations and equitable distribution throughout Monmouth County.
Call 732-647-9256 to request a free case evaluation and discuss your options with an experienced New Jersey family law attorney.
