In 2014 the present caught up with the past, and the term permanent alimony was replaced with the term open durational alimony. The name change was prompted by changes in the way our society thinks about former spouse dependency and post-divorce spousal responsibility. Although the nomenclature has changed the differences between open durational alimony and permanent alimony are not as great as one might think.
What Was Permanent Alimony?
For decades permanent alimony was the law of the land for long term marriages. If you had a long-term marriage and the other alimony factors were present permanent alimony would be awarded to a supported spouse. Permanent alimony made sense when women were not allowed to own property in their own names, or get credit in their own names. It also made sense when the majority of women did not work outside of the home on a full-time basis. In this family dynamic a woman would be left with nothing to support herself if the divorce laws did not require permanent alimony after the dissolution of a long-term marriage. Now fast-forward to the present where women outstrip men in attaining college degrees, women are the primary breadwinners in a growing percentage of households, and the large majority of American women work outside of the home on a full-time basis, and one can readily see why permanent alimony has been replaced in New Jersey.
Was Permanent Alimony Ever Really Permanent?
Although permanent alimony sounds like alimony forever, or never-ending alimony, in reality that was rarely the case. In practice, permanent alimony was alimony to be paid usually until retirement of the supporting spouse, at which point an application could be made to reduce or terminate alimony. In the usual case upon taking a good faith retirement the supporting spouse could show that his or her income from employment had been reduced, and therefore based on this “substantial change in circumstances” alimony should be reduced or terminated. Permanent alimony could also be reduced or terminated if other substantial changes in circumstances took place, such as: disability of the supporting spouse, significant decrease in need of the supported spouse, and cohabitation or remarriage of the supported spouse.
What Is Open Durational Alimony?
As mentioned above, open durational alimony replaces permanent alimony. What appears to be the biggest change between the two concepts is that for marriages of less than 20 years, under the new open durational concept, alimony cannot last longer than the length of the marriage. Where this change has the greatest impact is on marriages of 16 – 20 years in length. Marriages in this 16 year to 20 year range were always a gray area where some cases merited permanent alimony and other cases merited limited duration alimony. With the new language and the introduction of the open durational alimony concept, the new law attempts to set clear cut-offs on the duration of alimony. While this may seem like a huge change from prior law, it really isn’t. Some examples may help clarify the point. Under the new law if a couple is married for 17 years an alimony award cannot go beyond a 17 year term. Let’s say that the supported spouse is 50 years old at the time of the divorce and the supporting spouse is 55 years old. Under the old law even if the supported spouse received permanent alimony the supporting spouse would be making an application for termination or reduction of alimony when they reached retirement age – at 62 (7 years later), 65 (10 years later) or 67 (12 years later). If alimony can be terminated or significantly reduced at retirement 7, 10 or 12 years post-divorce the 17 year cap on alimony is almost irrelevant. Where the alimony cap may be relevant is in a marriage where the parties are younger at the time of the divorce. Let’s say that on a 17 year marriage the supported spouse is 40 years old at the time of the divorce and the supporting spouse is 45 years old. The 17 year cap will terminate alimony at 62 for the supporting spouse and 57 for the supported spouse. While again this appears to be a huge change from prior law, in reality, under the old law the relative youth of the supported and supporting spouse would usually mitigate against an award of permanent alimony. Suffice it to say that it remains to be seen how different judges will apply the new law to the cases that come before them.
If you have any questions about open durational alimony or any other family-law related questions don’t hesitate to contact me. I can be reached at 201-731-3086 (toll-free 844-431-3380) or via e-mail using the contact form. I have been representing clients in Northern New Jersey, i.e., principally Hudson, Essex, Passaic, Bergen and Union counties for over 20 years. The initial consultation is at no charge to you.