Lepis Standard Requiring Changed Circumstances Before Financial Discovery of Ex-Spouse Can be Obtained Survives 2014 Alimony Statute Amendment

Landau v. Landau, 461 N.J. Super. 107 (App. Div. 2019). The honor of the first published Appellate Division decision of the new Term goes to Judge Accurso in this matrimonial appeal. The issue, as Judge Accurso framed it, was “whether the changed circumstances standard of Lepis v. Lepis, 83 N.J. 139, 157 (1980), continues to apply to a motion to suspend or terminate alimony based on cohabitation following the 2014 amendments to the alimony statute, N.J.S.A. 2A:34-23(n).”

In Lepis, the Supreme court ruled that “[a] prima facie showing of changed circumstances must be made before a court will order discovery of an ex-spouse’s financial status.” The plaintiff ex-husband in Landau believed that the defendant ex-wife was cohabiting with another man. Plaintiff served voluminous discovery regarding defendant’s financial situation, but without having shown changed circumstances. He argued that 2014 amendments to the statute obviated the Lepis requirement of first showing changed circumstances.

Defendant resisted discovery and motion practice ensued. The Family Part authorized certain discovery. On defendant’s motion for leave to appeal, the Appellate Division granted leave and reversed.

Judge Accurso noted that N.J.S.A. 2A:34-23 provides that “after judgment of divorce … the court may make such order as to the alimony or maintenance of the parties … as the circumstances of the parties and the nature of the case shall render fit, reasonable and just.” It also provides that such orders “may be revised and altered by the court from time to time as circumstances may require.” None of that language changed in the 2014 amendments.

Since that was so, Judge Accurso saw “no indication the Legislature evinced any intention to alter the Lepis changed circumstances paradigm when it defined cohabitation and enumerated the factors a court is to consider in determining ‘whether cohabitation is occurring’ in the 2014 amendments to N.J.S.A. 2A:34-23.” Thus, plaintiff “was plainly not entitled to discovery under Lepis.”

Plaintiff complained that it was difficult to prove cohabitation, and that that should not be a prerequisite to discovery. But Judge Accurso said ‘that is hardly a new problem and it cannot justify the invasion of defendant’s privacy represented by the order entered here.” Accordingly, the panel reversed the order compelling discovery.