(973) 403-9200
Charles F. Vuotto Jr
This issue of the New Jersey Family Lawyer is dedicated to the law of alimony, with particular emphasis on the recent campaign to reform existing law that many believe to be antiquated in the context of modern society and divorce. Most notable among these efforts for reformation in New Jersey are two similar proposals to create a special commission to study the law of alimony for purposes of examining what, if any, changes are necessary in order to keep the law of alimony ‘in step’ with the 21st century. While there are many supporters of such special commissions aimed at alimony reformation, there are many who fear that the resulting reformation will be too extreme or too rigid. Perhaps the biggest concern surrounding reformation of the existing alimony law is the possibility of the implementation of alimony guidelines, either at the pre-divorce stage or at the time of final resolution.
Nevertheless, despite these concerns, activity to reform the law of alimony continues to gain momentum throughout the country (often in the form of an alimony reform group for a particular state), mainly because of the growing concern that the current stated purpose of alimony no longer reflects societal needs, lacks consistency, and too often results in unpredictable or irrational awards. Thus, it is not the issue of whether reform is necessary that is in dispute (with most agreeing that some form of change is necessary), but rather the degree and method of such reformation that has become hotly disputed among practioners and legislators alike.
Modern alimony laws developed at a time when the ability of a woman (originally the only gender that could receive alimony) to work and own property, either didn’t exist or was severely limited. (See the article by Stephanie Frangos Hagan on the origins of alimony, published in this issue.) Such circumstances do not presently exist, or at least exist to a far lesser degree. Therefore, the present overriding objective of alimony, as developed through case law (i.e., to maintain the dependent spouse, who could not obtain employment on her own, at the marital standard of living1) appears to be inconsistent with current society. Interestingly, this emphasis on marital lifestyle, so highlighted in our case law, is not found in our statutory framework. Although our alimony statute lists marital lifestyle as a factor, it does not elevate it above other factors as does our case law.
The lack of clarity surrounding the basis for an alimony award was highlighted by Justice Virginia Long, writing for the majority of the Supreme Court in the 2005 decision in Mani v. Mani.2 In that decision, Justice Long wrote that “…regarding the theoretical underpinning of post-divorce alimony…there is no consensus regarding its purpose.”
The perception problems surrounding post-divorce alimony were well-articulated in the report of the American Academy of Matrimonial Lawyers (AAML) titled Considerations When Determining Alimony, Spousal Support or Maintenance, which was approved by the Board of Governors on March 9, 2007.3 According to that AAML report, there are two major problems related to the fixing of spousal support.
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The first is a lack of consistency resulting in a perception of unfairness. From this flows the second problem, which is an inability to accurately predict an outcome in any given case. This lack of consistency and predictability undermines confidence in the judicial system and further acts as an impediment to the settlement of cases because without a reliable method of prediction clients are in a quandary.
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These two issues—inconsistent results and inability to predict an outcome—appear almost without exception as the two major problems with alimony noted by states that are exploring alimony reform. Underpinning these complaints is the fact that although society has changed, the law of alimony has not kept pace. As this trend continues to develop, matrimonial attorneys practicing in New Jersey must take notice, investigate, and analyze the issues surrounding the inherent flaws in our current law of alimony so that the flaws can be rectified in the best interest of our practice, and more critically, in the best interests of our clients and the children impacted by divorce.
Any time a statute, case authority, or court rule sets factors for a judge to review and to consider, the resulting judicial discretion may lead to inconsistent results and difficulty in predicting outcomes. For example, N.J.S.A. 2A:34-23.1, the statute dealing with equitable distribution of assets and debts, contains factors that, when applied, are likely to create inconsistent results with unpredictable outcomes. However, when the level of inconsistency and unpredictability rises to that experienced in the alimony determination process, reformation is required.
As referenced above, of particular note is recently proposed legislation by Assemblyman Sean T. Kean (Monmouth and Ocean) and Wayne P. DeAngelo (Mercer and Middlesex), who have introduced legislation (AJR-36) seeking to create a “Blue Ribbon Commission to Study Alimony Reform.”4 The statement to the proposed legislation indicates that it is intended to create an 11-member commission5 to “review state alimony law and propose potential avenues of reform.” In particular, the commission would review the scope of the current alimony laws in New Jersey in comparison with those in other states; trends in alimony awards; the effect, if any, of current economic conditions on trends in state alimony awards; and any other issues the commission may identify as necessary to understanding and reforming state alimony law.
In addition to the proposed legislation to create a blue ribbon commission, Assemblyman Kean has submitted legislation that provides for the modification of child support and alimony payments due to a change in circumstances (A-685).6 The bill seeks to amend N.J.S.A. 2A:34-23 to provide that:
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The obligation to pay child support may be modified based upon changed circumstances, which may include a diminishment of the obligor’s income due to unemployment, temporary disability or similar circumstances for a period lasting longer than six months, unless the court determines that such diminution in income was deliberately incurred by the obligor in order to evade such support obligation or that the obligor has failed to make reasonable efforts to secure alternative employment.7 (Emphasis added)
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That legislation was approved by the Assembly Judiciary Committee on Feb. 6, 2012.8 In a press release issued on that day, Assemblyman Kean advised the public that “Today’s committee approval is the beginning of addressing a topic that should be revisited and thoroughly evaluated to determine whether changing circumstances warrant modifying the way a divorce settlement is structured,” said Kean.
“Divorced couples face financial issues that must be fairly resolved and periodically assessed to ensure an undue burden is not placed on a person paying alimony. New Jersey’s current divorce law does not set appropriate limits on the duration and amount of alimony payments or provide for adjustments due to a change in a person’s financial situation, such as unemployment, disability or retirement,” continued Kean. “Alimony should help a person as they transition to self-sustaining employment. It should not be a lifetime financial obligation on the individual making payments. Establishing a commission that is focused on studying alimony and making practical recommendations is the most effective way to reform an antiquated system.”9
Putting aside some inaccurate statements concerning the current status of the law, Assemblyman Kean’s conclusion that the law must be re-examined is well-intentioned. Re-examination does not necessarily mean, however, the automatic imposition of alimony guidelines (although all forms of ‘guidelines’ should not be dismissed out of hand without consideration of the benefits some variation may provide in not only modernizing the current antiquated law, but in further establishing a higher degree of fairness and predictability to the alimony award). Instead of an automatic imposition of guidelines, the most sensible approach is to embark upon a re-examination of the law of alimony aimed toward creating whatever reform is necessary to both eliminate those portions of the law that are now dated and create new law that is more in touch with the needs of the modern family post-divorce.
When re-examination of the law of alimony is performed, great care must be taken to avoid potential problems that may unduly prejudice either the dependent or the non-dependent spouse. As just one example, the six-month waiting period set forth in the proposed amendment to N.J.S.A. 2A:34-23, although clearly seeking to protect an obligor-spouse from long periods where no reduction in support is granted despite an involuntary change in circumstances, may actually be used to preclude immediate relief that would otherwise be available under current law.
Alimony reform is prevalent not only in New Jersey, but in other states as well. Alimony legislation has been enacted, proposed, or is being investigated in many states, including most recently New York, Massachusetts, Florida, West Virginia, Maryland and Connecticut. Numerous articles have been written about the alimony reformation movement.10 In some states, alimony reform has led to the adoption of alimony guidelines. In other states, guidelines are applied on an informal basis, and sometimes only in certain portions of a particular state. Lastly, certain states are in the process of investigating the implementation of guidelines. (See the National Alimony Guidelines Survey Chart at the end of this column.)
The bills submitted in New Jersey and Florida, as well as the recent laws enacted in New York and Massachusetts, highlight the growing concerns of many legislators and citizens regarding how alimony laws have developed (or have failed to develop) across the country. Perhaps the greatest objection to reliance upon general statutory factors (which this author acknowledges is the prevalent approach) is that the discretion it provides to the court leads to a high level of inconsistency and unpredictability of both the duration and amount of alimony. That unpredictability leads to heightened litigation and associated costs. In other words, negotiating a settlement that includes spousal support is much more difficult when the parties, attorneys, mediators, arbitrators, and/or judges have no clear way of objectively calculating the appropriate amount and duration of alimony. This uncertainty causes litigation to be extended, while the associated costs (both financial and emotional) accrue.
The article by Cary B. Cheifetz titled “Alimony Guidelines: If it Ain’t Broke, Don’t Fix it” (which also appears in this issue of the New Jersey Family Lawyer) sets forth the arguments against a “guidelines approach.” The well-reasoned article lays out the particular formulas used around the country in states including Arizona, New Mexico, Kansas, Pennsylvania and Virginia. These formulas are also highlighted in the survey chart found at the end of this column. Mr. Cheifetz warns against a simplistic approach that is not fact sensitive, would not be tuned to the unique nature of each marriage and divorce case, and would serve to inhibit equitable relief by a judge with appropriate discretion.
As eloquently presented by Mr. Cheifetz, there are legitimate arguments against applying a cookie-cutter approach to any issue in matrimonial law. The dissolution of a marriage includes a multitude of varying facts that likely exceed the variables in any other kind of litigation. There are valid reasons why family law judges should have discretion to craft orders that are appropriate, fair and in the best interest of the parties and their children, based upon the unique facts and circumstances of any particular case.
On the other hand, there are equally compelling arguments calling for more of a ‘guidelines-based’ approach. As stated above, it is this author’s opinion that our current alimony laws are dated and out of sync with the needs of the modern divorcing family, where the non-dependent spouse is usually able to either continue working, return to the work force, or rehabilitate themselves in such a manner to permit an eventual return to the workforce consistent with their premarital earning potential. Accordingly, the focus on marital lifestyle is dated, since it does not consider the dependent spouse’s ability to earn income post-divorce, let alone the fact that in many cases the dependent spouse has not suffered any economic injury from the marriage that would impact his or her earning ability post-divorce. This author suggests that the objective of any alimony award should not be a monetary amount necessary to maintain the marital lifestyle, but should rather focus on a monetary amount necessary to compensate a spouse for the economic injury (if any) suffered as a result of the marriage.11
The focus on marital lifestyle in an alimony award is misplaced for a number of reasons. First, it seeks to continue the marital partnership, which is undeniably over. The benefits of the marital lifestyle are not simply financial. The marital lifestyle comprises many elements of everyday life that inure to both parties. In the blind goal to provide financial support to the lesser-earning spouse so that he or she may continue in a reasonable approximation of the marital lifestyle, the non-financial benefits of that lifestyle to the greater-earning spouse are forgotten. Second, there is truly no way to continue all of the non-financial aspects of the marital lifestyle for the greater-earning spouse, nor should there be. Third, even viewing the marital lifestyle only in terms of how much the parties spent on living expenses (which would be an error), that spending level can rarely be maintained for both spouses post-divorce. All in all, the focus on marital lifestyle as the objective of alimony is misplaced.
Although greater guidance is needed, the answer may not be what is typically called alimony guidelines, but rather a baseline policy change in the fundamental principals upon which alimony is awarded. These concepts are well stated in the article titled “To Guideline, or Not to Guideline: That is Not the Correct Question,” by Christopher Musulin, Esq., included in this issue. Mr. Musulin notes that perhaps the most interesting concept offered over the last 15 years comes from both the American Law Institute (ALI) and modern matrimonial practice in England.12 Specifically, the new concept focuses upon relationship-generated career loss (RGCL). To disassociate the historic rationale of need and create a new core purpose, the words “alimony” and “spousal support” are eliminated in favor of “compensatory spousal payments.” Compensatory spousal payments are awarded if a spouse can demonstrate a career loss/income loss directly attributable to the assumption of primary caretaking or homemaking responsibilities during the course of a matrimonial relationship. This is the essence of sacrifice, and is the subject of appropriate compensation, premised upon the law of damages and the equitable doctrine of detrimental reliance.
Some of the unanswered questions regarding relationship-generated career loss are how to define it, how to quantify it, and how to compensate the spouse for RGCL. As practitioners, we know that most legal theories require a review of factors in order to determine the answers to these questions. This would need to be further explored.
This author believes alimony reform is necessary. There are basic policy considerations that should be adopted as the underpinnings for alimony, and they must be made clear in all cases when the facts are in equipoise. For instance, the duration of the marriage is a ‘one-fact’ issue. There should be no question that a marriage of X years is either short-term, intermediate-term, or long-term. In fact, some states have already implemented such definitions.13 Even if ‘guidelines’ are not implemented for affixing the amount of alimony, the ‘duration of the marriage’ is a matter of public policy, and should not be left to guesswork.
How the characterization of the marriage (short, intermediate or long) is used in the ultimate alimony award can still be left to the discretion of the court, based upon the statutory framework. Further, if we trust judges to craft fair alimony awards based upon general (and perhaps amorphous) statutory factors, why are we so concerned that they will be unable to opt out of the guidelines or formulaic approach in exceptional circumstances, if such guidelines are put into place? It does, though, bear remembering that our child support guidelines are, in theory, a rebuttable presumption; but in practice, rebutting that presumption seldom, if ever, occurs.
Therefore, this author believes the following positions should be adopted by the bench and bar:
This is a very important time in the matrimonial community, as it is the first time since the 1970 Divorce Reform Commission that our state may undertake a comprehensive examination of the entire subject of alimony. This is especially important given the societal changes since 1970. It is this writer’s belief that the New Jersey State Legislature should enact the bill calling for a blue ribbon panel to address alimony with the hope of refining the law to better define the purpose of alimony consistent with societal changes, while also providing more consistency, predictability and fairness when it comes to this highly contested issue.
Endnotes
[1]. Two decades ago, in Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980), we reviewed the standards and procedures for modifying support and maintenance awards after a final judgment of divorce. The Lepis standards and procedures have stood the test of time well. In this matter, we reaffirm the Lepis principle that the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that [**527] is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage. The importance of establishing the standard of living experienced during the marriage cannot be overstated. It serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award when “changed circumstances” are asserted. (Emphasis added) Crews v. Crews, 164 N.J. 11, 16-17 (N.J. 2000).
[1]0. For example, see Wikipedia’s discussion of alimony at http://en.m.wikipedia.org/wiki/Alimony#section_5 and the article titled Are Alimony Guidelines in Our Future? The Uses and Abuses of Vocational Evidence in Divorce Cases © 2003 National Legal Research Group, Inc. http://www.divorcesource.com/research/dl/alimony/03nov189.shtml
[1]1. For example, the Pennsylvania alimony and child support guidelines emphasize the parties’ net incomes, not their standard of living, which avoids an inquiry into the parties’ frugalness or extravagance. Id. The court points out that while the reasonable needs of a child are a consideration in child support, the reasonable needs of a spouse are not a proper consideration when calculating spousal support. Therefore, the spousal support guidelines are valid even in high-income cases. Id.
[1]2. James Copson, Financial Provision in England After an Overseas Divorce, Family Law Quarterly 45 (Fall 2011): 361-67.
[1]3. In the summer of 2010, Florida amended its alimony statute to provide clear definitions of duration for an award of alimony, among other modifications. See Fla. Stat. §61.08, which reads, in pertinent part: “61.08(4): For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.”
The author would like to thank Christopher Musulin, of the Musulin Law Firm, LLC; Ronald G. Lieberman, partner with Adinolfi & Lieberman, P.A.; Lisa Steirman Harvey, of counsel with Tonneman, Vuotto & Enis, LLC; and Lauren E. Koster, associate with Fox Rothschild, LLP, for their assistance with this column.