This week New Jersey Governor Christie signed bill A845, which substantially reforms alimony law in the State of New Jersey. One of the most significant changes to existing alimony statute, N.J.S.A. 2A:34-23(b), in this State is that the new law eliminates “permanent alimony” in New Jersey and replaces with “open durational” alimony. Now, in New Jersey a family court may award one of more of the following times of alimony: open durational alimony, rehabilitative alimony, limited duration alimony or reimbursement alimony.
In making alimony determinations the court are still to consider a list of thirteen statutory factors, such as the need and ability of the parties to pay, duration of the marriage, the age and health of the parties, the parties’earning capacities and employability of the parties, parental responsibilities for children, and the equitable distribution of marital property. The new statute adds an additional factor, which is “the nature, amount and length of pendente lite support paid, if any”. Therefore, the court is to consider how much and for how long temporary support was paid before the divorce. Additionally, the prior statute required the courts to consider the “standard of living established int he marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living”. The amended statute modifies this statutory factor to provide that neither party has a greater entitlement to that marital standard of living than the other party. The amended statute requires that not only the court consider the relevant statutory factors but also states that “No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court must make specific findings of fact and conclusions of law in that regard.
In determining the duration of alimony, the court has to apply the fourteen statutory factors, and the statute also requires the court to consider “the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union to which both parties are entitled, with neither party having a greater entitlement thereto. In marriages that lasted less than 20 years, the new alimony statute does not allow the duration of alimony to exceed the duration of the marriage except in the case of “exceptional circumstances”. These circumstances require consideration of the parties’ ages at the time of the marriage and at the time of the alimony award, the degree and extent of dependency of one spouse on the other, whether a spouse has given up a career or supposed the other spouse’s career, whether a spouse received a disproportionate share of the marital estate, the impact of the marriage on the a spouse’s ability to be self-supporting such as the need to care for children, and tax considerations.
The statute also contains a provision for the retirement of the payor spouse. The statute creates a rebuttable presumption that alimony will terminate when the obligor spouse reaches retirement age. That rebuttable presumption may be overcome based on the ages of the parties, the extent of economic dependency, whether the recipient spouse has given up claims or property rights in exchange for a more substantial alimony award, the duration of alimony already paid, the health of the parties, whether the payor spouse has reached full retirement age, sources of the parties’ incomes, whether the recipient spouse had the opportunity to save for retirement, and other factors that the court deems relevant. If the presumption is overcome, the family court then will apply the above referenced alimony factors to determine if alimony should be modified or terminated. If the payor spouse is contemplating but has not yet retired, the court may determine the conditions upon which the payor spouse can retire. If the obligor spouse wants to retire before full retirement age, he/she can make an application accompanied by a Case Information Statement and bears the burden of proof by a preponderance of the evidence that retirement is reasonable and in good faith. The court will then consider factors such as the age and health of the parties, the obligor’s field of employment and the accepted age of retirement of workers in the field, the age at which the obligor’s employer determines the obligor is eligible for employment and the age at which continued employment would not increase retirement benefits, the obligor spouse’s motive to retire, the reasonable expectation of the parties during the marriage, the ability of the obligor to pay support after retirement, whether the obligor will continue to work or work part-time after retirement, and the financial impact of the retirement on the spouse receiving alimony.
The revised alimony statute also contains a provision for making a change in circumstance application to modify alimony. The statute provides that when a non-self employed spouse wants to modify alimony, the court has to look at the reason for the obligor spouse’s reduced income, documented efforts to find new employment, whether efforts were made to find employment in any field, the obligee’s income and employment opportunities, the parties’ health and ability to gain employment, severance pay awarded, changes in the parties’ financial circumstances and the reason for the change, and whether a temporary remedy can be fashioned . If a change in circumstance application is made after the loss of a job, the application can be made after 90 days of unemployment, and the court has the discretion to make relief retroactive to the date that employment was lost. When a self-employed person makes an application to modify alimony due to an involuntary reduction in income, that party must provide an analysis of the economic and non-economic benefits available now and at the time alimony was last established or modified. The court is permitted by the statute to provide temporary relief.
Finally, the modified alimony statute contains a provision for the modification or termination of alimony if the recipient spouse cohabits with another person. The statute says that “cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.” Since it is not always clear when cohabitation is occurring, the statute instructs courts to look for intertwined finances, shared or joint responsibility for living expenses, recognition of the relationship in family and social circles, frequency of contact or living together,the duration of the relationship, sharing household chores, and whether the recipient spouse has received a promise of support from another person. The statute does not allow a court to reject the finding of cohabitation based on the recipient spouse not living with another person full-time.
It should be noted that the change to the alimony statute only affects future divorces, not agreements or judgments already in place.
Alimony continues to be a a changing body of law. If you require experienced matrimonial counsel, the law office of James P. Yudes, A Professional Corporation has the expertise and knowledge to assist you.