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Understanding and using ‘anti-Lepis’ clauses in a New Jersey divorce

On Behalf of | Feb 28, 2022 | Divorce |

Most New Jersey residents considering a divorce have already heard much of the jargon used in a divorce case. Terms such as “alimony,” “irreconcilable differences” and the like are familiar to potentially divorcing couples. One term that may not be widely known is what is called an “anti-Lepis” clause.

The basics

As most adults realize, the circumstances that prevailed at the time of the divorce may change suddenly and drastically. These changes may impose significant and unanticipated financial burdens on one of the divorced parties. In order to protect their clients from changes that affect the former spouse, New Jersey divorce lawyers commonly insert what is known as an “anti Lepis” clause in the divorce agreement. An anti-Lepis clause is a waiver of the right to seek a change in the financial terms of the divorce, most commonly in the payment of spousal support. Because the right to receive spousal support belongs to each spouse, New Jersey courts have held that either or both spouses may waive their right to seek alimony or to seek changes in the original order that specified who would pay alimony and the amount of such payments.

Why use an anti-Lepis clause?

At the time of the divorce, one or both spouses may be anticipating a significant increase in their incomes in the coming years. If this expectation is one-sided, say, in the case of a physician marrying a nurse, an anti-Lepis clause is used to prevent the lower earner – the nurse in this hypothetical – from seeking a larger share of the doctor’s income as the years pass. The enforceability of anti-Lepis clauses has been challenged in numerous cases, but the courts have consistently upheld the validity and enforceability of such provisions.

Can an anti-Lepis clause be used to prevent efforts to increase child support?

The answer to this question is “no.” The different answer is based upon the difference in the child’s right to receive child support and the ex-spouse’s right to receive alimony. The right to receive child support belongs to the child, while the right to receive spousal support belongs to the ex-spouse. An ex-spouse cannot waive a right that he or she does not possess.

 

Conclusion. Anyone with questions about post-divorce changes to support orders may wish to consult a knowledgeable divorce attorney for a review of the relevant documents and an opinion about their enforceability.

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