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Avirett v. Avirett

Decided: March 5, 1982.

ALICE A. AVIRETT, PLAINTIFF,
v.
RICHARD M. AVIRETT, JR., DEFENDANT



Krafte, J.J.D.R.C., (temporarily assigned).

Krafte

A unique question regarding rehabilitative alimony has surfaced during an otherwise ordinary enforcement motion. Succinctly stated, the question is this: Do the modification parameters set forth in Lepis v. Lepis, 83 N.J. 139 (1980), apply to a voluntarily executed property settlement agreement which contains specific provisions for rehabilitative alimony as well as complete equitable distribution allocation, both factors being dependent upon the other? There does not appear to be an answer to this question by a court in this State.

An extensive property settlement agreement (hereafter the agreement) was entered into between the parties, at arm's length, with the advice of counsel, and executed on November 8, 1979. A final judgment was entered on April 2, 1980, incorporating the agreement with the usual testimony regarding voluntariness, understanding, fairness and equitableness.

Section 19.1 of the agreement specifically provided for alimony to plaintiff totaling $36,000, payable $1,000 a month for three years.*fn1 This provision was particularly interrelated with equitable distribution and, at least impliedly, conditioned upon plaintiff's continued attendance at college and the obtaining of a Bachelor of Science degree in psychology. She earned this degree in December 1980, as anticipated. Based upon the documentation submitted, all aspects of rehabilitative alimony were considered by the parties and their attorneys.

This opinion is directed to that part of defendant's cross-motion to terminate alimony based upon a change of circumstances.

The concept of rehabilitative alimony was first substantially treated by Judge Imbriani in Turner v. Turner, 158 N.J. Super. 313 (Ch.Div.1978). In spite of an Appellate Division decision

specifically disapproving of rehabilitative alimony, Arnold v. Arnold, 167 N.J. Super. 478 (App.Div.1979), the concepts of Turner were implicitly approved in Lepis v. Lepis, 83 N.J. at 155.*fn2

Let it be noted that the agreement before this court was drawn after both the Turner (April 1978) and the Arnold (April 1979) decisions were published. Therefore, this court must conclude that, in spite of the then existing state of law, as put forth in Arnold, 167 N.J. Super. at 391, i.e., "We do not agree with the general rationale . . . which would permit 'rehabilitative alimony' as an available viable technique for the avowed purpose of encouraging a spouse to seek employment," the parties adjusted all equities in the financial aspect of their marriage and did conclude that this technique was indeed viable for the proper dissolution of their marriage.

The report of the Supreme Court Committee on Matrimonial Litigation, Phase Two, released in July 1981, specifically and unequivocally approved the concept of rehabilitative alimony by the court, and quoted with approval, 3 Western N.E.L.Rev., 127, 132-133 (1980), as follows:

The primary goals of rehabilitative alimony . . . are to reduce post-divorce recourse to the courts, to provide the supporting spouse with some degree of certainty as to the nature and extent of the support obligation owed to the former spouse, and to encourage a supported spouse to develop employment skills within a precise period of time so as to become self-supporting. [Supplement to N.J.L.J., July 16, 1981, 14].

This court would include an additional clause in the above in order to fully approach and realistically deal with a concept which, on its face, would appear to be a male-oriented, sexist approach, contrary to our Supreme Court's pronouncement in Lepis v. ...


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