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In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: open durational alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. Alimony does not exist as an entitlement in every case simply because one is married. Spousal support is not a reward for the supported spouse, nor should it be an economic “windfall” for the supporting spouse. Rather, the supported spouse’s ‘right’ to alimony is limited to the financial need of the supported spouse as defined by the marital lifestyle experienced during the parties’ marriage and other statutory factors as far as economic circumstances will allow. Stated differently, the goal of an award of spousal support is to meet the financial need of the supported spouse sufficient to maintain the marital standard of living. However, as noted below, the substantial changes to the New Jersey Alimony Statute should be viewed as moving away, to some degree, from marital lifestyle as the main focus. Accordingly, the pivotal aspect of spousal support is the financial need of the supported spouse.The purpose of alimony is thus clearly and only the satiation of demonstrated need of support.
A historic event occurred on Wednesday, Sept. 10, 2014, with regard to the law of alimony in the state of New Jersey. On that day, Governor Chris Christie signed Assembly bill A-845, A-971 and A-1649, which made substantial changes to the alimony law. The following is an overview of the major changes to the alimony statute.First and foremost, the designation of permanent alimony has been eliminated from our statutory framework. The Legislature has replaced the phrase “permanent alimony” with “open durational alimony.”
Also of significant importance is the fact that the Legislature has now emphasized that neither party has a greater entitlement to the standard of living enjoyed during the marriage. Also, when determining whether to award alimony, as well as the amount and duration thereof, the court must now consider the “nature, amount, and length of pendente lite support paid, if any.” Also of substantial significance is an express statutory requirement that no statutory factors shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard. Included within this section is the following text: “If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion.” Although this provision applies to all factors, it is clear that major impetus for this clause was to make it clear that “marital lifestyle” was no more important than any other factor.Also of substantial significance is the eradication of what some perceived as a presumption in favor of permanent alimony. Now, in any occasion in which there is a request for an award of alimony, the court shall consider and make specific findings on the evidence about all of the statutory factors set forth in the statute. The court no longer must determine that an award of permanent alimony is not warranted before being permitted to consider whether other forms of alimony could be awarded, such as limited duration, rehabilitative or reimbursement. Further, the restriction that the court not be permitted to award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded has been eliminated.
A major change in New Jersey’s alimony law is the greater guidance regarding the duration of alimony. Although the new statute does not impose traditional guidelines regarding the amount or duration of alimony, the new statute states that “for any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.” Subject to this provision, the statute does expressly state that the determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of the statutory factors set forth within the statute. In addition to those factors, the court shall also consider the practical impact of the parties’ need for a separate residence and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto. The statute goes on to list specific examples of “exceptional circumstances,” which may allow the court to deviate from the presumption that in any marriage less than 20 years in duration, the amount of alimony should not exceed the length of the marriage. These exceptions are rather broad and in practice may eclipse the enumerated factors. They include the age of the parties, the degree and duration of dependency of one party on the other, whether a spouse or partner has a chronic illness or unusual health circumstance, whether a spouse or partner has given up a career or career opportunities, whether a spouse or partner has received a disproportionate share of the assets,the impact of the marriage or civil union on either party’s ability to become self-supporting (including responsibilities as primary caretaker of a child), tax consequences or any other factor or circumstance the court deems equitable, relevant and material. In light of the foregoing, it may be that payors will be more inclined to initiate the divorce action quickly if no agreement can be reached, so the length of the marriage stops accruing.
In addition to the foregoing, there are substantial changes to the alimony statute regarding modification or termination of alimony upon the prospective or actual retirement of an obligor.When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established after the effective date of the act (i.e., September 10, 2014), there shall be a rebuttable presumption that said alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled. “Full retirement age” shall mean the age at which a person is eligible to receive full retirement for full retirement benefits under section 216 of the federal Social Security Act (42 U.S.C. § 416). The rebuttable presumption may be overcome if, upon consideration of various factors (listed in detail within the new statute) and for good cause shown, the court determines alimony should continue. If the presumption is overcome, the court is then instructed by the new statute to apply the alimony factors set forth initially in the statute to the parties’ current circumstances in order to determine whether modification or termination of alimony is appropriate. If the obligor intends to retire but has not yet retired, the court shall establish the conditions under which the modification or termination of alimony will be effective. When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of the act (i.e., September 10, 2014), there is no rebuttable presumption that said alimony shall terminate. In that situation, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith retirement age. In making its determination, the court shall consider the ability of the obligee to have saved adequately for retirement as well as another litany of factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate.There is also a new provision addressing an obligor who seeks to retire prior to attaining full retirement age. Determination of the reasonableness of prospective or actual retirement is to be made based upon another list of factors added to the statutory scheme.
Regarding modifications of alimony awards, significant text has been added to the statutory scheme listing separate sets of factors for “non-self-employed” parties and “self-employed” parties. With regard to applications by non-self-employed parties, the court is now permitted to make a determination on whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigation by the unemployed spouse or partner. More importantly, in cases where the changed circumstances arise from the loss of employment,the length of time a party has been involuntarily unemployed or has an involuntary reduction in income shall not be the only factor considered by the court when an application is filed by a non-self-employed party to reduce alimony because of involuntarily loss of employment. The court shall determine the application based upon all of the enumerated factors; however, 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.Nevertheless, the court shall have discretion to make any relief granted retroactive to the date of the loss of employment or reduction of income. These new statutory provisions essentially reverse existing case law that suggests no relief may be granted to an alimony obligor unless he or she has been out of work for about 20 months. Further, when a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, that party’s application for relief must include analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.Further, 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.
The alimony statute has been further revised to change the impact of cohabitation upon alimony obligations. Specifically, the statute now provides that alimony may be suspended or terminated if the payee cohabits with another person. Noticeably missing is any reference to “modifying” the alimony. Cohabitation is now defined in the statute to involve “a mutually supportive, intimate personal relations in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” When assessing whether cohabitation is occurring, the court shall consider six specific factors delineated within the statute plus a seventh catchall regarding “all other relevant evidence.”
At the very end of the statute under the heading “Effective Dates,”, it states that the act shall take effect “immediately” and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: (a) a final judgment of divorce or dissolution; (b) a final order that has concluded post-judgment litigation; or (c) any enforceable written agreement between the parties.
Generally, alimony should be premised upon the court’s analysis of the facts of the case in categories listed in the alimony statute (i.e., statutory factors.) In so doing the court shall consider, but not be limited to, the following factors:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
(13) The nature, amount, and length of pendente lite support paid, if any; and
(14) Any other factors which the court may deem relevant.
In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.N.J.S.A. 2A:34-23(b).
If either the dependent or the supporting spouse is voluntarily underemployed, the courts will impute income to the underemployed spouse based on his or her earning potential when determining the appropriate amount of alimony. As with all support obligations, alimony is modifiable upon a substantial change in circumstances.