The parties in this case were divorced on October 25, 1985, after a 23 year marriage. Incorporated into the judgment of divorce was a separation and property settlement agreement setting forth their respective rights and obligations, including a provision that rehabilitative alimony be paid to plaintiff for six years. The agreement stated in relevant part:
"The parties contemplate termination of alimony in no more than 6 years, regardless of changed circumstances." (emphasis supplied).
Plaintiff brings this post-judgment motion to continue the alimony payments beyond the six year period because of "changed circumstances" which she asserts, entitles her to relief under Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980). In response to the motion, the defendant, predictably, raises the "anti-Lepis" clause as an absolute bar to the relief sought.
The issue, to date addressed by only a single trial Judge, is whether an "anti-Lepis" clause prohibiting modification of a property settlement agreement regardless of changed circumstances, is void under the law and public policy of this State, or rather, is enforceable according to its terms.
In Finckin v. Finckin, 240 N.J. Super. 204, 206, 572 A.2d 1199 (Ch.Div.1990), the trial court, without explanation, concluded that an "anti-Lepis" clause was not prohibited by public policy considerations. While acknowledging that Lepis permits modification under certain circumstances, the court noted:
This property settlement agreement clearly incorporates language of nonmodifiability in order to provide greater finality. This practice has been recognized by the courts. Hurley v. Hurley, 230 N.J. Super. 493 [553 A.2d 891] (Ch.Div. [L.Div.] 1988). "In essence, defendant applies to this court to be relieved from his obligations set forth in a fully negotiated agreement with plaintiff for which each party gave due and full consideration." Harris v. Harris, 235 N.J. Super. 434, 438-439 [563 A.2d 64] (Ch.Div.1989).
This court respectfully disagrees with the Conclusion reached in Finckin, supra, and, for the reasons set forth below, holds that an "anti-Lepis" clause, which seeks to preclude the exercise
of this court's equitable responsibility to review and, if warranted, to modify support obligations in response to changed circumstances, is contrary to the public policy of this State as reflected in its legislative acts and its judicial decisions.
Attempts to preclude continuing judicial scrutiny of the fairness of a property settlement agreement through self-executing or "automatic" provisions have been specifically rejected by the Supreme Court. In Petersen v. Petersen, 85 N.J. 638, 644, 428 A.2d 1301 (1981) the court concluded that an escalator clause that tied increases in support to the net income of the obligated spouse, could not automatically be enforced and, held instead that enforcement was subject to continuing judicial supervision. Thus, a party affected by such a self-executing provision may not only seek its modification, but may even seek to set it aside. Id. at 644, 428 A.2d 1301. See also, Edgerton v. Edgerton, 203 N.J. Super. 160, 171, 496 A.2d 366 (App.Div.1985) (because interspousal agreements are enforceable only in equity, they are subject to the court's continued supervisory control).
Many of the policy considerations which caused the Supreme Court to reject a rule granting a greater degree of permanence for negotiated agreements, as contrasted with judicial decrees, are equally relevant to adjudging the validity of an ...