(973) 403-9200

Is the New Alimony Statute Applicable to Cases in the Pipeline?

by Charles F. Vuotto Jr. and Cheryl E. Connors

(See our related Podcast on Women and Divorce – Alimony)


The newly revised alimony statute became effective on Sept. 10, 2014. This article addresses the question of whether cases ‘in the pipeline’ should be resolved in accordance with the new alimony statute, even if a ruling or judgment was entered in that case prior to the enactment of the new statute. One Supreme Court case has addressed “pipeline retroactivity” in criminal matters, noting application best balances principles of fairness and response.”[1] Essentially, pipeline retroactivity renders the new rule “applicable in all future cases, the case in which the rule is announced, and any cases still on direct appeal”.[2] In descending order of breath of their effect, from the narrowest to the broadest, the shorthand hierarchy of categories is purely prospective, pipeline retroactivity, or full retroactivity.[3] Admittedly, the cases dealing with pipeline retroactively are mostly criminal cases and land use cases.  However, as detailed below, certain matrimonial cases have addressed pipeline retroactivity.

In the civil context, pipeline retroactivity of a new rule or law contemplates that three classes of litigants will be beneficiaries: those in all future cases, those in matters that are still pending, and the particular successful litigant in the decided case.[4] The bedrock principles of decisional law retroactivity were spelled out in State v. Knight, a case involving criminal procedure:


This court has four options in any case in which it must determine the retroactive effect of a new rule of criminal procedure. See State v. Burstein, 85 N.J. 394, 402-03, 427 A. 2d 525 (1981). The court may decide to apply the new rule purely prospectively, applying it only to cases in which the operative facts arise after the new rule has been announced. Ibid. Alternatively, the court may apply the new rule in the future cases and in the case in which the rule is announced, but not in any other litigation that is pending or has reached final judgment at the time the new rule is announced, but not in any other litigation that is pending or has reached final judgment at the time the new rule is set forth. Id. at 403,427 A. 2nd 525. A third option is to give the new rule “pipeline retroactivity,” rendering it applicable in all future cases, the case in which the rule is announced, and any cases still on direct appeal. Ibid. Finally, the court may give the new rule complete retroactive effect, applying it to all cases, including those in which final judgments have been entered and all other avenues of appeal have been exhausted, Ibid.[5]


Applying the above principles to matrimonial cases, the Appellate Division in Johnson v. Johnson[6] stated,


[t]o determine whether a new rule of law should be applied retroactively or prospectively, the court must consider the following factors: ‘(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice. The inquiry is very fact sensitive.’[7]


The Johnson Appellate Division further stated that:


The general rule in civil cases is that a new rule will apply to all cases that have not reached final judgment.  Full retroactivity is not appropriate where it would expose the judicial system to the undue burden of resolving numerous concluded matters. Pipeline retroactivity is appropriate where it will serve the interest of justice by permitting currently litigating parties to resolve their claims on the merits.  Pipeline retroactivity is further appropriate where the benefit of allowing settled issues to remain undisturbed outweighs the need to do justice.[8] 



Decisions from the early days of the equitable distribution statute and its amendments are instructive. For example, the New Jersey Supreme Court in Gibbons[9] retroactively applied the amendments to the equitable distribution statute to the parties in that case. [10] In Gibbons, the parties were married on Nov. 15, 1952.  A complaint for divorce was filed in Aug. 1976. The equitable distribution statute was amended to exclude gifts and inheritances (other than inter-spousal gifts) on Dec. 31, 1980. The trial court included gifts and inheritances in the assets subject to equitable distribution. The husband appealed the trial court’s judgment to the Appellate Division.

In a decision dated May 12, 1980, a divided panel affirmed the trial court’s modified judgment. Two members of the panel believed the trial court had properly exercised its discretion in dividing the couples’ gifts and inheritance assets equally as part of the equitable distribution of marital assets. One member of the panel dissented, expressing the following view:


Although equitable jurisdiction over inherited and gifted assets is clearly desirable,… it should be exercised only upon a finding that failure to do so will result in grossly disparate and unfair in equality, or some other manifest injustice…further, if distribution of such assets is ordered, it should not be in an amount greater than what is articulably related to what is needed to repair the inequity or relieve the injustice.[11]



The husband appealed as of right pursuant to Rule 2:2-1(a)(2), on June 12, 1980. As previously noted, the equitable distribution statute was amended on Dec. 31, 1980, (presumably while the Supreme Court matter was pending), to provide that: “all property, real, personal or otherwise, legally or beneficially acquired during the marriage by either party by way of gift, devise or bequest shall not be subject to equitable distribution, except that inter-spousal gifts shall be subject to equitable distribution.”[12]

The Gibbons Court noted that:


the amendment contained no indication as to whether it was to be applied to pending cases or only prospectively, and the legislative history offers no clear guidance on this point.  This lack of direction lead the Governor to state, at the time he signed the Bill into law, that because of the statute’s silence on the question of retroactivity and the absence of a consensus in the Legislature on the point, “I believe the courts are the most appropriate forum to resolve that issue.  They will have to decide based on existing principles of law, the extent to which this new law will affect pending cases.” We now undertake to resolve the retroactivity issue.[13]



The Supreme Court noted the courts of this state have long followed a general rule of statutory construction that favors prospective application of statutes.[14] The basic rationale includes a fundamental principle of jurisprudence that retroactive application of new laws involves a high risk of being unfair.  Essentially, parties require notice or warning of the rules that are to be applied to determine their affairs.  The Supreme Court in Gibbons quoted the Rothman Supreme Court, which stated  “the rule favoring prospective application of statutes while ‘a sound rule of statutory interpretation… is no more than a rule of statutory interpretation’ and is not to be applied mechanistically to every case.”[15] The Court then noted that there are well settled rules concerning the circumstances in which the statute should be applied retroactively, where there is no clear expression of intent by the Legislature that the statute is to be prospectively applied only.  The Gibbons Court again cited Rothman’s rationale,  concluding the equitable distribution statute should be retroactively applied because the Court was:


unable to believe that the legislature intended its grant of power to undertake an equitable distribution of marital assets to apply solely to property acquired on or after the effective date of the act.  Were this construction to be adopted, it would, in each case, become necessary to determine the date of acquisition of each asset acquired during marriage, often a difficult if not impossible task. A further question would arise should the particular property interest under consideration, though acquired after the effective date of the act, have been purchased with, or received in exchange for, money or other property owned before that date. Moreover, if [the statute were to be prospectively applied,] it has been estimated, apparently without exaggeration, that the full effect of the statute would not be felt for at least a generation.[16]



Clearly, where the Legislature has expressly stated whether a new statute should be given retroactive or only prospective affect, the Legislature’s expressed intent must be followed.  Also, there are circumstances where the issue of retroactivity is addressed in the legislative history.  There are also circumstances where the issue of retroactivity is implied and retroactive application may be necessary to make the statute workable or to give it the most sensible interpretation.[17] Another category of cases in which the Court has held that statutes may be given retroactive application includes statutes that are ameliorative or curative.[18] The Gibbons Court noted, “finally, in the absence of a clear expression of legislative intent that the statute is to be applied prospectively, such considerations as the expectations of the parties may warrant retroactive application of a statute.”[19]

If a court concludes that retroactive application is appropriate, the court must make a further inquiry to determine whether the application would result in manifest injustice to a party adversely affected because that party relied, to his or her prejudice, on the law that is now to be changed, as a result of the retroactive application of the statute, and whether the consequences of this reliance are so deleterious and irrevocable that it would be unfair to apply the statute retroactively.[20]

Applying all of the aforementioned principles, the Supreme Court in Gibbons concluded that the amendment to N.J.S.A. 2A:34-23 with regard to the exclusion of gifts and inheritances among assets to be equitably distributed should be retroactively applied.  More importantly, the Court stated that, “[c]onsequently, it applies to this case and all other cases presently on direct appeal or in which a final judgment has not be entered. See Bellinger v. Bellinger, 177 N.J. Super 650 (Ch. Div. 1981) (applying amended version of N.J.S.A. 2A:34-23 to case tried after the effective date of the amendment).”[21]

Admittedly, the Supreme Court in Gibbons found no clear expression of legislative intent that the amendatory statute be applied prospectively.  Indeed, the Court concluded that it can be “fairly inferred” from the legislative history that the Legislature intended the amendment to apply retroactively.[22]

The Supreme Court in Gibbons also concluded that the amendment was “curative” in so far as it reflects the Legislature’s attempt to improve a statutory scheme already in existence.   Further, the Gibbons Court noted that retroactive application would bring the law into harmony with settled expectations of many donors and donees.  When examining the expectations of the alimony reformers and the payors of alimony in this state, similar conclusions may equally apply to the application of the amendments to the alimony statute.

Lastly, the Court in Gibbons did not find that retroactive application of the statute would result in any manifest injustice to the wife notwithstanding her claims that it would be inequitable because she relied upon the law as it existed at the time she brought her action for divorce.  Particularly, the wife claimed she chose to seek equitable distribution only and not alimony because of what she believed was the broad scope of assets subject to equitable distribution. The New Jersey Supreme Court, however, concluded that no manifest injustice would result from retroactive application of the amendatory statute to the wife’s case since “any orders pertaining to alimony or other support, may be revised and altered by the court from time to time as circumstances may require.”[23]

The issue of pipeline retroactivity was also discussed in the case of Edgerton v. Edgerton.[24] In Edgerton, the wife appealed from the denial of her trial court motion brought under Rule 4:50-1(f) in which she had sought to modify that portion of a property settlement agreement (PSA) incorporated into a final judgment of divorce dealing with inherited assets and equitable distribution. The wife’s inherited assets had been considered subject to equitable distribution in the agreement. The wife argued that because the equitable distribution statute had been amended to remove inherited property from distribution, and that change had been declared retroactive by the Supreme Court in Gibbons, she was entitled to modify the judgment.

The Appellate Division reversed the denial of her motion and remanded to the trial court with instructions to declare those assets included in the property settlement agreement that had been acquired by the wife by way of inheritance to be solely her property and not subject to equitable distribution under N.J.S.A. 2A:34-23. The Appellate Division further directed that a plenary hearing should be held with respect to the fairness of the agreement as modified by its opinion to exclude the inherited property.[25] Oddly enough, although the parties’ property settlement agreement was dated Dec. 21, 1979, they entered into an “amendatory agreement” on July 27, 1981, almost seven months after the equitable distribution statute was amended and 19 days after the Supreme Court’s decision in Gibbons. After the amendatory agreement, the parties proceeded to an uncontested hearing on July 27, 1981. There was no mention of the amended statute or Gibbons decision during the uncontested hearing. Nevertheless, on March 14, 1984, the wife filed a post-judgment motion that sought, among other relief, to vacate the judgment regarding the portion relating to equitable distribution.[26]

In an April 20, 1984, opinion supplementing her oral decision, the judge rejected the wife’s arguments that: 1) the judgment should be set aside because the amendment to the statute relating to inherited assets had already been given retroactive effect, and 2) she had not been aware of the change in the law of equitable distribution. The trial judge also concluded that the Supreme Court’s holding in Gibbons on retroactivity was only applicable to court-ordered distributions and not consensual agreements. The judge held that the status of the law at the time the parties entered into their original agreement was determinative, apparently not taking into account the amendment to the agreement, which was entered into after the effective date of the amendment to the equitable distribution statute. The judge did note in passing that the husband’s other factual arguments in opposition to the wife’s motion were unpersuasive on the claims of laches, ratification and detrimental reliance.[27]

The Appellate Division’s analysis relied heavily on the 1984 trial court decision of Castiglioni.[28] The court stated, “as in the instant case, Castiglioni considered the retroactive effect of a statutory change in the law of equitable distribution in the context of the previously negotiated and signed settlement agreement which had relied on prior law.”[29]

In Innes v. Innes,[30] the parties were married for 31 years before the husband filed a complaint for divorce on Oct. 8, 1982.  A dual judgment of divorce incorporating a property settlement agreement was entered on March 26, 1984.  On June 14, 1985, the husband was unexpectedly fired by his employer.  Ultimately, the husband filed an application to modify his alimony due to changed circumstances.  The trial court included in the husband’s income for purposes of the modification application, pension benefits that had been distributed at the time of the divorce.  The husband appealed, contending that in determining alimony, the trial court should not have considered the income he received from his pension and annuity, because the inclusion of that income, he argued, constituted an inequitable form of “double dipping” in as much as it flowed from assets that had already been equitably distributed.  The husband relied on D’Oro v. D’Oro,[31] which prohibits such consideration.

The Appellate Division reversed and remanded because the trial court made no findings concerning the parties’ circumstances in establishing the alimony.  However, the Appellate Division rejected the plaintiff’s argument that his pension and annuity income should not be considered in determining alimony and specifically rejected application of the D’Oro rule.  Justice Virginia Long, then Judge Long, issued a dissenting opinion to the Appellate Division majority’s decision, which stated in relevant part:


Plaintiff and defendant divided the pot of marital assets at the time of the divorce. In so doing, defendant took her share of plaintiff’s pension in a lump sum. Plaintiff now receives his share of the pension periodically. Periodicity does not change the nature of the transaction or the character of the pension payments as assets and not income. This is not a situation in which a distributed asset generates or throws off income. In that event, the income would clearly be a part of the post-judgment alimony base. Here, the pension payments sought to be tapped by defendant as alimony are plaintiff’s equitable share of the marital asset; as such they are not includible in the calculation of available income for an alimony award. It is not the fact that the pension is not income. Simply stated, no asset, however derived, should be considered part of the income available for alimony purposes. [Id. at 248-49, 542 A.2d 39] The recent amendment to N.J.S.A. 2A:34-23, which codifies the holding in D’Oro, had not been enacted when the Appellate Division decided the case. Accordingly, neither [569 A.2d 774] Appellate Division opinion discussed the applicability of the amendment to this case…[32]



The issue before the New Jersey Supreme Court in Innes was whether the trial court may consider the ex-husband’s pension benefits when determining whether his alimony payments should be modified.  The New Jersey Supreme Court held that it may not.[33] The Court states that its disposition of the issue was governed by the recent amendment to the equitable distribution statute, pre-existing law and the specific language of the parties’ agreement. Therefore, the Innes Supreme Court applied the recent amendment to the statute that occurred after the trial level disposition of the post-judgment motion to the parties in that case.

Therefore, litigants who have appealed a final judgment of divorce and are at some stage of the appellate process (whether before the Appellate Division, Supreme Court or trial court after remand) are still in the pipeline.

In the Appellate Division decision Johnson v. Johnson,[34] the court concluded that the holding in Fawzy[35] had to be given pipeline retroactive effect.  The parties in Johnson were married on Oct. 26, 1994.  They were divorced on Aug. 16, 2005.  The final judgment of divorce incorporated an agreement executed on May 24, 2005.  In 2007, the parties were experiencing issues regarding the amount of time each parent would spend with the children.  As a result, the parties agreed to binding arbitration to “resolve pending differences and parenting time scheduling issues.”  A referral to arbitration was granted by a family part judge on Oct. 31, 2007, which incorporated the previously executed arbitration agreement.

In the arbitration agreement, the parties agreed to have Mark White, Ph.D. serve as the arbitrator subject to the New Jersey Alternative Procedures for Dispute Resolution Act (APDRA).[36] White delivered his findings and final decision on April 11, 2008.  The husband filed a motion for reconsideration on May 16, 2008, in which he requested that White reconsider the entire decision or clarify the husband’s vacation time with the children.  White issued his response on May 22, 2008.  Unhappy with that response, the husband then sent correspondence to the wife and White regarding removal of White from the matter in light of the Appellate Division’s June 16, 2008, decision in Fawzy v. Fawzy.[37]

The husband filed a motion to confirm White’s decision, and the wife filed a cross-motion opposing confirmation and requesting modification of custody and visitation.  The motions were argued on Sept. 26, 2008.  The wife asserted Fawzy invalidated final binding arbitration awards dealing with custody and parenting time issues because the ADPRA does not require full plenary review of the best interest of the children but rather provides for only limited review in accordance with issues identified in N.J.S.A. 2A:23A-13.  The husband, on the other hand, argued that Fawzy was inapplicable because it pertained to arbitration under the Arbitration Act[38] yet arbitration in Johnson was conducted under the APDRA.  The family part judge delivered an oral decision on Sept. 29, 2008, in which he confirmed White’s decision.  The wife appealed.

After appellate briefs were filed in Johnson, the Supreme Court decided Fawzy.[39]  The wife asserted that the trial judge erred in confirming White’s decision in light of the holding in Fawzy.  She argued that the arbitrator made no fact findings or legal conclusions that would enable the judge in his parens patriae role, to determine the best interests of the children.  Thus, the wife argued that it was not an “appropriate and credible record from which to conclude that the arbitrator’s recommendation was in the best interests of the minor children.”[40]  The wife pointed out that there was no formal record of the proceeding from which the judge can conduct a de novo review.  She contended the judge was required to conduct a plenary hearing to determine whether the award was in the children’s best interest, as required by Fawzy, and that the judge erred in affirming the arbitration award.[41] The wife also raised other issues regarding bias and related claims.

The preliminary question entertained by the Appellate Division in Johnson was whether the more restrictive requirements detailed in Fawzy (e.g., permitting an arbitration award to be overturned upon a showing of harm to the child, requiring that a record of all documentary evidence be kept, requiring that all testimony be recorded verbatim and requiring that the arbitrator state in writing or otherwise record his or her findings of fact and conclusions of law with a focus on the best-interest standard) were applicable to the Johnsons.  The Appellate Division in Johnson acknowledged that the Fawzy requirements stated a new rule of law as neither the APDRA nor the Uniform Arbitration Act (UAA) required a record to be made of the proceedings.  In determining whether the new rule should be applied retroactively or prospectively, the Appellate Division in Johnson held that it must consider the following factors:


  • The purpose of the rule and whether it would be furthered by retroactive application,
  • The degree of reliance placed on the old rule by those who administered it, and
  • The effect a retroactive application would have on the administration of justice.[42]


The Johnson court found that the aforementioned factors support retroactive application of Fawzy to the Johnsons.  First, the Johnson court explained the purpose of the rule is to provide parents with the option of handling child custody and parenting time issues through arbitration while insuring that arbitration results in no harm to the child.  The Johnson court stated,


[c]learly, protection of the best interests of the children will be furthered by application of Fawzy to those arbitrations where best-interests review was not available.  Second, it was clear after Faherty that the availability of arbitration for custody and parenting-time issues had not been decided by the Court.  Thus, no degree of reliance could have been placed on the “old rule” as none existed.  Third, in considering the effect retroactive application would have on the administration of justice, we consider whether retroactive application would be limited to pipeline retroactivity or full retroactivity.[43]



The Johnson court concluded “pipeline retroactivity is appropriate where it will serve the interest of justice by permitting currently litigating parties to resolve their claims on the merits.”[44] As such, the Appellate Division found “pipeline retroactivity is appropriate here so that previous awards will not be disturbed but currently litigating parties, including those here, will have the benefit of the court’s decision in Fawzy to protect the best interest of children.”[45] Therefore, the Appellate Division in Johnson found the Fawzy requirements would be given pipeline retroactivity.  Although the matter proceeded to the Supreme Court and the ultimate disposition by the arbitrator was upheld, it was upheld on the basis that the record maintained by White was sufficient.  The Supreme Court did not disturb the Appellate Division’s conclusion regarding the pipeline retroactivity of Fawzy’s holding.   Later, in N.H. v. H.H., the Appellate Division confirmed that the principles of Fawzy should be applied to cases in the pipeline.[46]

In Maeker v. Ross,[47] the New Jersey Supreme Court prospectively applied the amendment to the statute of frauds requiring that all palimony agreements be made in writing and with the independent advice of counsel.  The Court concluded that the amendment to the statute of frauds “represent[ed] a sea change in the law.”[48]  The Court analyzed the words in the legislative history of N.J.S.A. 25:1-5(h), which stated: “This act shall take effect immediately.”[49]  The Court noted that the legislative history was silent on its intent regarding the retroactivity of the bill, and that the Court inferred that the Legislature knows “[t]hat courts generally will enforce newly enacted substantive statutes prospectively, unless it clearly expresses a contrary intent.”

The Maeker Court further examined that “[h]istorically, the Statute of Frauds has been applied prospectively to avoid interfering with vested rights.”  The Maeker Court recognized the reason for not applying an amendment to the statute of frauds retroactively is that “rendering a previous valid contract unenforceable would impair the obligation of a contract and run counter to” constitutional rights.[50]  Because the Legislature did not express a clear intent to retroactively apply the amendment, the Court determined it “did not intend to retroactively void the indeterminate number of oral palimony agreements that predated its enactment.”


In order to fully address this issue in the context of the new alimony statute on cases in the pipeline one must look to the alimony statute and related legislative history. Section 2 of L. 2014, c. 42 provides:


This 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.” Chapter 42, L. 2014, was approved on Sept. 10, 2014.



Therefore, the act is to take effect “immediately.”  Does this presume prospective application?

The concerns of the Court in Maeker are applicable to those cases where the parties have specifically bargained for contractual provisions and, thus, it is clear that retroactive application is not appropriate.  Further, the Legislature has provided specific guidance to courts on such cases as well as those cases where a final judgment of divorce or final order in a post-judgment litigation has been entered.  The question is what did the Legislature intend with respect to those limited cases that are in the pipeline and whether it intended for those cases to have the benefit of the new statute.  It is the authors’ opinion that the phrase “[T]his act shall take effect immediately” in the legislative notes to the amended statute should be interpreted as giving the amended statute prospective applicability to all new cases, including post-judgment applications seeking to modify pre-existing final judgments of divorce or marital settlement agreements, except to the extent that the terms of a judgment or agreement provide for a different standard to be applied.  (The authors believe that all such new cases include cases that are on appeal.)  Regardless, the new statute cannot override terms of an agreement or a prior order or judgment that was not appealed. In Spangenberg v. Kolakowski, the Appellate Division declined to apply the amended statute in the context of cohabitation because the post-judgment order became final before the statutory amendment’s effective date and the court notes that the post-judgment order was not appealed.[51]

The Supreme Court’s recent decision in Quinn v. Quinn emphasizes that the language of the settlement agreement will have a significant impact on whether the court will apply the new statute.[52]  The Quinn property settlement agreement provided that “[a]limony shall terminate upon the wife’s death, the husband’s death, the wife’s remarriage, or the wife’s cohabitation, per case or statutory law, whichever event shall first occur.”[53]   The majority’s decision in Quinn states, “when the parties entered into the PSA, the legislature had not yet spoken on whether cohabitation, like remarriage, could permanently terminate alimony responsibilities.”[54]  It is important to note that prior to the hearing, the parties agreed that the facts would be evaluated under the definition of cohabitation set forth in Konzelman v. Konzelman.[55]  The majority added the following footnote:


On September 10, 2014, the Legislature enacted N.J.S.A. 2A:34-23, which provides that “[a]limony may be suspended or terminated if the payee cohabits with another person.”  L. 2014, c 421.  The Legislature clarified that this law “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.”  Id. §2.  Because this law was enacted after the PSA was entered, it does not govern this case, and the terms of the PSA apply.[56]



The majority’s decision goes on to state that “[a]ccording to the case law in effect at the time the parties executed their matrimonial agreement, a cohabitation was considered a relationship that was ‘shown to be serious and lasting.’”[57]

What is curious is that this language implies the Quinn majority interpreted the PSA as referring to the law in effect at the time the PSA was executed.  They did not seem to consider a possible different interpretation, for example, that the words “per case or statutory law” could refer to the law at the time the issue of cohabitation arises.  That may be due to the stipulation reached by the parties that Konzelman applies.

Interestingly, Justice Barry Albin in his dissent addresses the new statute and the implications of the new statute.  Justice Albin’s dissent relies to some degree on the new statute. He points out that the new statute provides that “[a]limony may be suspended or terminated if the payee cohabits with another person.”[58] Justice Albin noted “[I]n contrast, when “a former spouse shall marry… permanent and limited duration alimony shall terminate as of the date of remarriage.”[59]  He concluded the permissive language in N.J.S.A. 2A:34-23(n) unlike the mandatory language in N.J.S.A. 2A:34-25 indicates that the Legislature did not intend alimony to terminate, or even be modified, automatically in the event of co-habitation.  Therefore, the permissive language requires family courts to equitably exercise discretion.  Putting aside whether one agrees with Justice Albin’s interpretation of the impact of the new alimony language, the fact that he is referring to it would seem to suggest that he believes it was relevant to the Quinn case.

The bottom line is that the implicit interpretation by the majority in Quinn that the phrase “per case or statutory law” refers to the law at the time of the agreement would seem to make the debate moot regarding the applicability of the revised alimony statute.  Footnote 3 in Quinn, therefore, does not change that conclusion.

Thus, if an application is filed to modify alimony based upon cohabitation and the parties have agreed in their agreement to apply Gayet, then the provisions of the amended statute will not apply to that application to the extent contrary to Gayet. However, all other aspects of the statute shall apply. In that situation, the reviewing court will be required to defer to the provisions of the previously agreed-upon Gayet standard.  If the agreement is silent on the standard for cohabitation, then the statute will apply to any post-judgment application filed after Sept. 10, 2014.  The New Jersey Supreme Court did not address the issue of pipeline retroactivity in Gnall v. Gnall.  The New Jersey Supreme Court mentions in footnote 1:


N.J.S.A. 2A:34–23(c) was amended on September 10, 2014 to specify that ‘[f]or 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….’ The amendment is not applicable to this case.[60]



Why? The New Jersey Supreme Court does not explain its analysis of the statutory language or legislative history to reach the conclusion that the amendment does not apply.  It can only be inferred that the Court concluded the legislative history stating the act should not be construed to “modify the duration of alimony ordered [in] a final judgment of divorce or dissolution” precluded the act’s applicability to the issue of duration of alimony addressed in Gnall.  However, was the judgment ‘final’ when it was appealed? The question is whether any case started before the amendment became effective, which was on direct appeal at the time the statute became effective, will be entitled to pipeline retroactivity.  It is the authors’ opinion that cases, which are on direct appeal, should have the benefit of pipeline retroactivity because the Legislature intended the act take effect immediately.  If those cases on direct appeal do not receive the benefit of the law, it renders the statutory words meaningless.


Charles F. Vuotto, Jr. and Cheryl E. Connors are partners at the firm of Tonneman, Vuotto, Enis & White, LLC with offices in Matawan and Cedar Knolls.  The authors wish to thank Brian Paul, John Finnerty and Dale Console for their input in the drafting of this article.


[1] State v. Natale, 184 N.J. 458, 494 (2005).

[2] See State v. Dock, 205 N.J. 237, 256 (2011) (emphasis added).

[3] Id. at 258.

[4] In the matter of N.H. v. H.H., 418 N.J. Super. 262 (App. Div. 2011).

[5] State v. Knight, 145 N.J. at 249.

[6] 411 N.J. Super. 161 (App. Div. 2009).

[7] Id. at 173 (quoting Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 74 (1998)).

[8] Id.. at 174.

[9] Gibbons v. Gibbons, 86 N.J. 515 (1981)

[10] N.J.S.A. 2A:34-23 was amended to exclude from equitable distribution all property “acquired during the marriage” by either party by way of gift, devise or bequest… except… interspousal gifts.”

[11] Gibbons v. Gibbons, 174 N.J. Super. at 123.

[12] Gibbons v. Gibbons, 86 N.J. at 520.

[13] Id. at 520-21.

[14] Ibid. (Citations omitted).

[15] Id. at 522 (quoting Rothman v. Rothman, 65 N.J. 219, 224 (1974)).

[16] Id. at 523 (internal footnote and citations omitted).

[17] See Hohl v. Twp. of Readington, 37 N.J. 271, 279 (1962).

[18] In re Smigelski, 307 N.J. 513, 527 (1959); see 2 Sutherland, Statutory Construction, supra section 41.11.

[19] Cf. Westinghouse Electric Corp. v. United Electric Radio & Machine Workers of America, 139 N.J. Eq. 97, 106 (E&A 1946).

[20] Gibbons v. Gibbons, 86 N.J. at 523-24.

[21] Id. at 524.

[22] See footnote 4 from the Gibbons decision which reads as follows:

As originally introduced and passed by the Assembly, A. 1229 contained the following express disclaimer of retroactivity: “(T)his amendatory act does not apply to any judgment entered and any action for divorce or divorce from bed and board filed prior to the effective date of this act.” The Assembly Committee explained that the amendment “is not retroactive and does not apply to any judgment entered or any divorce action filed prior to the effective date of the act.” Assembly Judiciary, Law, Public Safety and Defense Committee Statement to Assembly, No. 1229 of 1980. The Senate Judiciary Committee, however, deleted the disclaimer of retroactivity and explained that the effect of the deletion “was to make the provisions of Assembly Bill No. 1229 applicable to pending actions.” Senate Judiciary Committee Statement to Assembly, No. 1229 of 1980. The Senate and Assembly passed the Senate Committee’s version without further comment.

[23] Gibbons v. Gibbons, 86 N.J. at 525 (citations omitted).

[24] 203 N.J. Super. 160 (App. Div. 1985)

[25] Id. at 175.

[26] Edgerton v. Edgerton, 203 N.J. Super. at 166.

[27] Id.

[28] Castiglioni v. Castiglioni, 192 N.J. Super. 594 (Ch. Div. 1984)

[29] Edgerton v. Edgerton, 203 N.J. Super. at 171.

[30] 117 N.J. 496 (1990).

[31] 187 N.J. Super. 377 (Ch. Div. 1982), aff’d, 193 N.J. Super. 385 (App. Div. 1984)

[32] Innes, 117 N.J. at 503.

[33] Id. at 505.

[34] 411 N.J. Super. 161 (App. Div. 2009)

[35] 199 N.J.  456 (2009)

[36] N.J.S.A. 2A:23-1 to 30

[37] 400 N.J. Super. 567 (App. Div. 2008), aff’d on other grounds, 199 N.J. 456 (2009).

[38] N.J.S.A. 2A:23B-1 to 32.

[39] 199 N.J. 456.

[40] Johnson, 411 N.J. Super. at 167.

[41] Ibid.

[42] Johnson v. Johnson, 411 N.J. Super. at 173 (internal quotations deleted and citations omitted).

[43] Ibid.

[44] Id. at 174.

[45] Ibid.

[46] 418 N.J. Super. 262 (App. Div. 2011).  In N.H., the parties agreed in their Matrimonial Settlement Agreement that they would be bound by the recommendations of Dr. Charles Katz, Ph.D. as to custody and parenting time.  The appellate panel concluded that Dr. Katz served in the role as an arbitrator and that the parties were in the pipeline because at the time the Family Part decided the MSA’s enforceability, the parties were still litigating their dispute.  Id. at 285-88.

[47] 219 N.J. 565 (2014).

[48] Id.

[49] Id. (quoting L. 2009, c. 311, § 2).

[50] Id.

[51] 442 N.J. Super. 529, 539 (App. Div. 2015).

[52] Quinn v. Quinn, __ N.J. __ (2016).

[53] Id. (emphasis added).

[54] Id.

[55] 158 N.J. 185 (1999)

[56] Id. (emphasis added).

[57] Quinn, supra, (quoting Konzelman, supra, 158 N.J. at 203.” (emphasis added)).

[58] N.J.S.A. 2A:34-23(n) (emphasis added).

[59] N.J.S.A. 23:34-25 (emphasis added).

[60] Gnall v. Gnall, 222 N.J. 414,  ( 2015)

Leave a Message

Contact Form Homepage