Articles Posted in Divorce and Alimony in New Jersey

For years divorcing couples have heard that New Jersey courts do not consider fault when it comes to determining whether alimony should be awarded. This is true. In most cases marital fault is irrelevant to a determination of alimony. However, as the New Jersey Supreme Court stated in the case of Mani v. Mani, 183 N.J. 70 (2005), in a case where the spouse claiming the right to alimony engages in fault which affects the parties’ economic life, the fault may be considered in the calculation of alimony. As well, where the marital fault is so egregious that it violates societal norms alimony that would otherwise have been awarded may be denied in its entirety.

Facts of the Mani Case

The Mani’s were married in 1973 and over the course of their marriage they enjoyed a high standard of living, financed almost entirely by income from the wife’s father’s business and investments. As the marriage progressed Mr. Mani not only dropped out of full-time work, but when the parties retired he began to have an affair with the couples’ mutual friend. Mrs. Mani soon filed for divorce, and because the parties couldn’t settle their case a trial took place.

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The marital standard of living is the template for the parties post-divorce lifestyle. Alimony is paid from one party to the other to attempt to maintain this marital standard of living post-divorce. The key document in establishing the marital standard of living is the Family Part Case Information Statement (CIS). The CIS is a nine page financial statement which details the income, assets and liabilities of both parties. The key pages which establish the marital standard of living are pages 5 and 6. Page 5 deals with marital shelter expenses, and transportation expenses. Page 6 deals with personal expenses. All expenses are calculated on a monthly basis. The cumulative sum of the expenses on Pages 5 and 6 of the CIS represents the marital standard of living. The difference between the supported spouse’s income and their post-divorce needs, to maintain the marital standard of living, is the amount that should be made up with alimony. The CIS has two columns. One column reflects the marital standard of living the second column reflects the post marital standard of living. Continue reading →

In New Jersey, retirement has always been viewed as a substantial change in circumstances warranting a review of whether alimony should be modified or terminated. In August 2014 Governor Christie signed into law changes in how retirement affects alimony. The new law provides that there is a rebuttable presumption that alimony terminates when the supporting spouse reaches full retirement age. Full retirement age is defined as the age at which a person is eligible to receive full social security retirement benefits. By setting the fixed social security retirement age as a trigger date for a review of alimony (if the supporting spouse actually retires) the courts are taking the controversy out of the question – “what is a good faith retirement date?” Prior to the enactment of the law a supported spouse could question whether a supporting spouse was retiring in good faith, even if the supporting spouse had passed normal retirement age.

Factors for the Court to Consider in Determining Whether to Terminate Alimony upon Retirement

There are a number of factors that the court must consider in deciding whether to terminate alimony upon retirement. These factors include: (1) the ages of the parties when the supporting spouse is retiring; (2) how old the parties were when they married and when alimony was first awarded. Other factors that the court must consider include: (3) the degree of the supported spouses economic dependency on the supporting spouse while they were married; (4) what the supported spouse gave up, if anything, in exchange for a larger or longer alimony award; (5) how much alimony has already been paid and for what period of time; (6) the health status of both parties at the time that the retirement application is put before the court; (7) the parties assets at the time that the application for termination of alimony is put before the court; (8)  both parties incomes; and (9) whether the supported spouse had the ability to save for his or her own retirement. Continue reading →

One of the toughest positions to be in for the supporting spouse and the supported spouse is the situation where a supporting spouse loses their job, or their income is reduced. Both households are impacted by the job loss, and if the parties can’t work out an out-of-court agreement an application has to be made to the court to resolve the question of whether alimony can be reduced. In order to prevail on an application to reduce alimony the supporting spouse will generally have to show that they have been diligently looking for work to bring their income back to its prior level. During the great recession as blue color and white-collar professionals were getting downsized the courts struggled to come up with uniform ways to deal with the flood of alimony adjustment cases. The recent changes to New Jersey’s alimony laws set uniform rules and procedures for courts to determine when a supporting spouse can get a reduction in the term or amount of their alimony payments. There are two separate and distinct tracks of analysis. One track deals with W-2 wage earners, while the other track deals with self-employed individuals. Continue reading →

The death of a supporting or supported spouse has always been a ground to terminate alimony in New Jersey. Similarly, the remarriage of the supported spouse is a ground for termination of alimony. However, when the supported spouse cohabitates with a third-party at what point does the cohabitation warrant termination of alimony? For years courts struggled with identifying the exact point at which a relationship became cohabitation. Was evidence of a car overnight in the driveway two nights a week enough to support cohabitation? Was there a requirement for a full-scale move-in before cohabitation would be found? The law in this area was updated in 2014 and now provides a very detailed description of what constitutes cohabitation warranting a suspension or termination of alimony. Continue reading →

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.

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Limited duration alimony is alimony for a limited period of time (number of years). It is used in marriages where the spouse who will be receiving the alimony needs the money to maintain the marital standard of living for a period of time post-divorce. The notion is that after a number of years have passed the receiving spouse will be self-supporting and she or he won’t need alimony anymore.

Limited duration alimony is awarded when the marriage has been long enough to warrant alimony, but not long enough to warrant open durational (formerly permanent) alimony. This begs the question – how long does a marriage have to last for one spouse to be entitled to limited duration alimony?

Short-Term Marriages (0 to 3 years)

The simple answer is that generally speaking marriages lasting 0 to 3 years are not alimony cases. The rationale is that a union of this length has been too short-term for an alimony obligation to be warranted. This is not to say that reimbursement alimony is out of the question on a short-term marriage. However, in the normal case limited duration alimony will not be awarded in a short term 0-3 year marriage. One area where alimony has been awarded in short-term marriages is in the subset of immigration/family law cases area where a husband or wife has signed an Affidavit of Support for a spouse who they have brought into the country. By signing the Affidavit of Support the signing spouse has obligated themselves to support the other spouse at a certain level, even in the case of a short term marriage.

4 to 5 Year Marriages

When you get into 4 and 5 year marriages the alimony conversation begins. Whether alimony is awarded, and the length of the alimony, is an open question. It depends on the parties unique financial circumstances.

Intermediate Term Marriages (6 – 15 years)

Once you get to 6+ years of marriage you are in limited duration alimony territory.  Once you get to 15+ years you’re starting to have a conversation about potential open durational alimony (formerly permanent alimony). There is no accepted number of years that crosses a marriage from limited duration alimony to open durational alimony. The facts and circumstances of each particular case influence the type of alimony which is warranted.

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As its name implies rehabilitative alimony is money paid from one spouse to the other to help “rehabilitate” the spouse receiving the alimony after the marriage is dissolved.

Rehabilitative alimony is usually awarded or agreed upon when one spouse has been out of the workforce for a substantial period of time and they need to enroll in or complete a course of education to make themselves more employable. Unlike alimony based on the receiving spouse’s support needs rehabilitative alimony is tailored to getting the receiving spouse back in the workforce.

A typical fact scenario where rehabilitative alimony would make sense is where one spouse stopped working when the children were young, and she or he has lost the in-demand workforce skills that they once had. The paying spouse can contribute to the receiving spouse’s school tuition. After the supported spouse completes their degree and obtains employment, the rehabilitative alimony should be terminated. Continue reading →

Of the four types of alimony awarded in New Jersey reimbursement alimony is the most rarely used. It covers the situation where the parties pool their money to send one of them to get an advanced degree which they both intend to benefit from.

The classic example of a marriage where reimbursement alimony may be appropriate is the marriage where both parties meet in college, and they decide together that one will go to graduate school or professional school while the other holds a job and supports the family. If the marriage disintegrates, the spouse who received the benefit of the support while they pursued the advanced degree, may have to pay reimbursement alimony to the spouse who supported them. Continue reading →

In New Jersey alimony (sometimes called spousal support or maintenance) is an award of money from one spouse (the payor) to their ex-spouse (the payee) after a divorce. The purpose of alimony is to help the spouse receiving alimony (the payee) maintain a financial lifestyle which is reasonably comparable to the financial lifestyle enjoyed by the parties during the term of their marriage.

Alimony is not awarded automatically. It has to be demanded. In terms of duration of alimony payments, the courts recognize four distinct types of alimony: open durational (which recently replaced permanent alimony), limited duration (term) alimony, rehabilitative alimony and reimbursement alimony. Each type of alimony is discussed in greater detail in separate blog posts.

NJSA 2A:34-23 is the specific statute which governs alimony awards in New Jersey. The statute lists 14 factors which the court must consider in order to decide whether to award alimony. The 14 factors are set out in detail on my website itonlaw.com.

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