Lepis and Anti-Lepis Clauses Defined

As as initial matter, it is important to note the New Jersey court system encourages parties to a divorce to settle. The Courts prefer when parties can resolve financial and custodial issues without judicial intervention. The terms of settlement are embodied in a Property Settlement Agreement, also known as a Marital Settlement Agreement.

Oftentimes, a party files a motion for modification of a specific term in the property settlement agreement. New Jersey Courts permit this. The Courts allow parties to file post-judgment (post-divorce) motions for modifications of property settlement agreements (contracts).

In this respect, the contract, property settlement agreement, is treated vastly different in the family context than in a business or employment context. In the latter, there is very litttle room for change.

The New Jersey Supreme Court in Lepis v. Lepis, the seminal case on this matter, held that child support, alimony, visitation, and other related issues are reviewable and modifiable. A prima facie case of a substantial change in circumstances must be shown. Lepis, 83 N.J. 139 (1980).

Parties are sometimes weary when entering into property settlement agreements because they are mindful that their soon-to-be ex-spouse can seek to modify the contract based on changed circumstances. Accordingly, it is not uncommon for parties to put Anti-Lepis clauses in their property settlement agreements. By placing this provision in a settlement agreement, essentially both parties are attempting to prevent the other from being able to change any terms of the agreement.

An Anti-Lepis clause in a Property Settlement Agreement explains that each party understands that alimony may be modified, BUT is waiving the right to seek this recourse in the future.
There has been much debate over Anti-Lepis Clauses, and the ability of this clause to withstand scrutiny has not been entirely tested. New Jersey courts have decided many cases involving this specific issue and have reached different outcomes.

However, at present, including an Anti-Lepis Clause in an Agreement is the only way a party can protect himself/herself from being dragged into Court by an ex-spouse for an increase in alimony, or generally speaking, for a change to the terms of the agreement.