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relief, there is a list of factors for a court to consider. The
considerations include the reason for loss of employment
or reduction in income; documented efforts of the payor
to obtain replacement income, either in the designated
field or another occupation; income and other financial
circumstances of the payee; any changes to either/both
parties’ financial circumstances since the entry of the
order from which relief is sought.
Additionally, the court can consider whether a
temporary remedy should be considered. In this regard,
N.J.S.A.2A:34-23m directs that:

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When assessing a temporary remedy, the
court may temporarily suspend support, or
reduce support on terms; direct that support
be paid in some amount from assets pending
further proceedings; direct a periodic review; or
enter any other order the court finds appropriate
to assure fairness and equity to both parties.
Section k. also provides the answer to the question,
‘When can the payor file?’ “No application shall be filed
until a party has been unemployed, or has not been able
to return to or attain employment at prior income levels,
or both, for a period of 90 days.” Additionally, section
k. gives the court discretion to “make any relief granted
retroactive to the date of the loss of employment or
reduction in income.”
The clear intention of the revisions in sections k.
and m. was to provide the court with the tools to craft a
remedy that acknowledges the hardship a loss of employment and/or reduction in income has on both parties,
where the prior law generally focused on the supported
spouse. Put another way, the new sections suggest that
both parties must make financial adjustments and
sacrifices, not just the payor. Moreover, based upon the
new statute’s apparent goal, the hope is that parties will
be more inclined to work together in crafting voluntary
resolutions by and between themselves—without court
involvement—when a payor has had an involuntary or
unanticipated change in financial circumstances.
With regard to section l., although the factors considered are the same, it is apparent that the standard for

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relief is intentionally higher for a self-employed person.
Presumably, a self-employed person has a greater ability
to control and define ‘income.’ Quite often, a tax return
does not tell the whole story of the cash flow available
to a business owner. As a result, section l. provides that
when a self-employed payor seeks relief, the application
“must include an analysis that sets forth the economic
and non-economic benefits the party receives from the
business, and which compares these economic and noneconomic benefits to those that were in existence at the
time of entry of the order.”43
Further, although not specifically stated, it is also
likely that a business owner will have to demonstrate a
prolonged term of reduced income. It cannot be ignored
that the 90-day term is in section k., but not in section
l. This is likely in recognition of the fact that the income
of many businesses fluctuates each year and, often, the
income utilized to establish support is based upon an
average income over a period of years.
The final substantive change within the new statute
concerns cohabitation. Again, in order to understand the
context for the new provisions, some historic perspective
is appropriate. In 1983, in Gayet v. Gayet,44 the Supreme
Court was asked to address the effect cohabitation would
have upon an alimony obligation. Justice Daniel O’Hern,
who delivered the opinion, noted the following:
Two policies of the law intersect in the
resolution of this issue. First, the Legislature
has directed that alimony shall terminate upon
remarriage. N.J.S.A. 2A:34-25; see Sharpe v.
Sharpe, 109 N.J. Super. 410 (Ch.Div. 1970), mod.,
57 N.J. 468 (1971). This signals a policy to end
alimony when the supported spouse forms a new
bond that eliminates the prior dependency as a
matter of law. That policy, however, can conflict
with another state policy that guarantees individual privacy, autonomy, and the right to develop
personal relationships free from governmental
sanctions. See State v. Saunders, 75 N.J. 200
(1977) (all members of the Court agree that there
is a limited state interest in regulating an individual’s personal decisions relating to privacy, which
have merely incidental effects on others). See also
Right to Choose v. Byrne, 91 N.J. 287 (1982). We
must then consider how to balance these competing policies in these circumstances.45
Ultimately, the Court adopted an economic needs test
to determine whether cohabitation requires modification
of an alimony award; that is, once a payor establishe