Alimony Policy: The Missing Element

By Charles F. Vuotto, Jr.

There is no question that determining both the length and amount of alimony in New Jersey are fact-sensitive exercisesrequiring the analysis of 12 specific statutory factors with a 13^th catchall factor. Any alimony analysis should not be relegated to formulaic guidelines, which by their very nature will only consider a few factors such as the income of the parties and the length of the marriage. However, the fact that we may not wish to adopt guidelines or a formula approach does not mean that our law of alimony cannot be improved by providing judges, practitioners, and litigants with greater guidance as to certain elements of the law such as duration and modification based upon changed circumstances, cohabitation and retirement. These concepts were more fully detailed in my column that appearedwithin this publication in June, 2012[i]. In that column, I proposed that enhanced guidance will provide greater predictability and consistency in alimony awards. These improvements in turn will also provide for less costly litigation and more expeditious resolutions. I submit herein that another way to provide all concerned with greater guidance is to refine and clearly express the public policy underpinning Permanent Alimony.

What has happened in New Jersey as to alimony obligations has become somewhat controversial either to the supporting spouse or the dependent spouse, especially with regard to the duration of some awards and post-divorce applications to reduce alimony due to changed circumstances such as unemployment, cohabitation and retirement[ii]. For example, standards for reviewing such applications must be revised to recognize that even if unemployment does not last for an appreciable period of time, it may warrant review and relief from an alimony obligation. Moreover, the standard for relief from alimony payments in the event of cohabitation by the dependent spouse needs to be revised, and a more expansive definition of cohabitation warranting relief must be devised. It is unfair to the former spouse that a dependent spouse and a paramour, living as if they are married yet acting to keep their finances separate can defeata showing of an economic connection that would lead to a modification of the support obligation. Most importantly, the law must recognize that the world has changed since principles for modification of alimony awards were initially established decades ago. So much of what we rely upon in the doctrine of changed circumstances was created in a world where fewer people cohabited, unemployment was the exception because people had job security, and life expectancy (along with work life expectancy)were significantly lesser than they are today.  The problem with the current alimony reform movement is that the reformers equate modernization of the law with a wholesale abandonment of fairness instead of a case by case analysis.

One reason for any potential problems with our current alimony law may be an over-emphasis on one factor when awarding alimony; i.e., the requirement to maintain the marital lifestyle. Specifically, when assessing statutory factors in connection with awards, too much emphasis is being placed on marital life style even though marital life style is one of many factors to be considered.  Sometimes it is forgotten that the marital life style is an entitlement to be enjoyed by both spouses.  If circumstances do not allow for maintenance of the marital life style by both spouses, then bothmust be equitably impacted.   The over-emphasis on marital lifestyle when awarding alimony is drawn from case law, not the statute. In Crews v. Crew[iii]s, our Supreme Court “reaffirm[ed] the Lepis v. Lepis[iv] principle that the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.”[v] This obligation of the supporting spouse has been held as recognizing “…a continuing responsibility to contribute to the maintenance of the dependent spouse at the standard of living formerly shared.”’[vi] However, the quintessential question raised by this column is whether this judicially- imposed continuing responsibility of the supporting spouse to maintain the dependent spouse at a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse is indeed the proper policy for determining the duration and amount of alimony.

In the recent past, our State’s Legislature reacted to judicial decrees in ways that family law practitioners did not see as fair. Recently, the Legislature responded to the judicial enforcement of oral or conduct-based promises to support in the palimony/living together cases by amending the Statute of Frauds. In order to prevent a potentially harsh outcome in reviewing alimony, a proposal to the Legislature or new case law focusing on different factors may avoid the imposition of alimony guidelines such as are currently being considered. Therefore, prompt attention or reconsideration of the current lifestyle based policy behind alimony is required.

There are various reasons we could say that Permanent Alimony or Limited Duration Alimony are awarded. It can be argued that one or more of the following reasons might lend support to an award of either Permanent or Limited Duration Alimony[vii]:

1. To compensate for domestic services;
2. To compensate for economic and non-economic contributions to the marriage;
3. To reflect the concept of a joint marital partnership;
4. To provide the dependent spouse with the marital standard of living;
5. To reflect compensation for economic “harm”or diminished earning potential caused to the dependent spouse by the marriage as a result of choices made during the marriage, including children and child rearing responsibilities;
6. To compensate for the transfer of earning potential during the marriage from the supported spouse to the supporting spouse; and/or
7. To compensate for lost advantages as the result of the focus of parties’ efforts on the higher earner’s career.

This list is not exhaustive. There is no doubt that other reasons could support an alimony award. One thing is clear; the bench and bar must know the purpose or policy behind alimony before applying the facts of the case to each statutory factor.

It is this writer’s opinion that the following policies for awarding alimony most fairly represent the current social and economic realities of society and create an equitable outcome when allocating resources and responsibilities between individuals:

1. To compensate the financially disadvantaged spouse for the economic or other “harm”, damage, or diminution of earning potential caused by the marriage. This would recognize the situation where the dependent spouse has sacrificed her/his career advancement and earning potential for the marriage, such that the goal of alimony should be to restore that person to the level of income which she/he would have reached but for the marriage.
2. To compensate the financially disadvantaged spouse for the financial and non-financial contributions to the marriage (and/or other spouse) that benefited said other spouse from a financial perspective including but not limited to enhanced earning potential, but reduced by the economic or other advantages enjoyed by the financially disadvantaged spouse that he or she would not have been able to enjoy but for the marriage.
3. To support the financially disadvantaged spouse who has become legitimately medically or mentally unable to support him or herself during the marriage at a reasonable standard of living.
4. To avoid the financially disadvantaged spouse from being a public charge.
5. To reflect that the entitlement of a financially disadvantaged spouse to a fair share of the marital standard of living is directly proportional to the length of the marriage.

Before judges, attorneys and litigants can proceed to apply the statutory factors, the reason why alimony in any particular case is sought must be determined. With these policies firmly stated and applied to the facts of a particular case, the court and counsel can then apply the statutory factors in the appropriate context.

The author wishes to thank many members of the NJFL Editorial Board for their invaluable input to this column.

This article is republished with the permission of the New Jersey Family Lawyer.

[i] 33 NJFL 1 (June 2012)

[ii] Perhaps the law should evolve to recognize the right and obligation of both parties to plan for retirement by implementing a new policy presumption in favor of alimony termination at normal retirement age as defined by the full social security age.

[iii] 164 N.J. 11, 16 (2000)

[iv] 83 N.J. 139 (1980)

[vi]Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.), certif. denied, 180 N.J. 354 (2004) (quoting Lepis v. Lepis, supra, 83 N.J. at 152). See Crews v. Crews, supra, 164 N.J. at 16; Innes v. Innes, 117 N.J. 496, 503 (1990); Heinl v. Heinl, 287 N.J. Super. 337, 344 (App. Div. 1996)

[vii]The author does not include “Rehabilitative” or “Reimbursement” alimony in this column. The purposes for those two forms of alimony have been clearly and logically defined. Rehabilitative alimony permits a short-term award “from one party in a divorce [to] enable [the] former spouse to completethe preparation necessary for economic self-sufficiency, and ceas[es] when the dependent spouse is in a position of self-support.” Cox, 335 N.J. Super. at 474-475 (citations omitted). Lastly, reimbursement alimony is awarded to “compensate a spouse who has made financial sacrifices resulting in a reduced standard of living by enabling the other spouse to forego gainful employment while securing an advanced degree or professional license to enhance the parties’ future standard of living.” Id. at 475 (citations omitted).

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[1] 33 NJFL 1 (June 2012)

[1] Perhaps the law should evolve to recognize the right and obligation of both parties to plan for retirement by implementing a new policy presumption in favor of alimony termination at normal retirement age as defined by the full social security age.

[1] 164 N.J. 11, 16 (2000)

[1] 83 N.J. 139 (1980)

[1]Glass v. Glass, 366 N.J. Super. 357, 370 (App. Div.), certif. denied, 180 N.J. 354 (2004) (quoting Lepis v. Lepis, supra, 83 N.J. at 152). See Crews v. Crews, supra, 164 N.J. at 16; Innes v. Innes, 117 N.J. 496, 503 (1990); Heinl v. Heinl, 287 N.J. Super. 337, 344 (App. Div. 1996)

[1]The author does not include “Rehabilitative” or “Reimbursement” alimony in this column. The purposes for those two forms of alimony have been clearly and logically defined. Rehabilitative alimony permits a short-term award “from one party in a divorce [to] enable [the] former spouse to completethe preparation necessary for economic self-sufficiency, and ceas[es] when the dependent spouse is in a position of self-support.” Cox, 335 N.J. Super. at 474-475 (citations omitted). Lastly, reimbursement alimony is awarded to “compensate a spouse who has made financial sacrifices resulting in a reduced standard of living by enabling the other spouse to forego gainful employment while securing an advanced degree or professional license to enhance the parties’ future standard of living.” Id. at 475 (citations omitted).