A bill has passed the New Jersey Senate and Assembly and which is now before the governor that intends to amend the current alimony statute, N.J.S.A. 2A34-23. At present, the alimony statute allows a court to consider (1) permanent alimony; (2) limited duration alimony; (3) rehabilitative alimony; and (4) reimbursement alimony. Under permanent alimony, there is technically no end to alimony until the payor or payee spouse dies or the payee spouse remarries. The new proposed alimony statute would replace “permanent alimony” with “open durational” alimony.
The proposed N.J.S.A. 2A:34-23 still requires the courts to consider “the standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living”, but points out that neither spouse has a greater entitlement to the marital standard of living than the other. The proposed statute adds a factor to the traditional thirteen factors, adding that the court is to consider “the nature, amount, and length of pendente lite support, if any”. The court has to make findings of fact as to each factor and consider evidence as to the 14 statutory factors. If the court determines that there are factors that are more relevant than others, the court must make written findings of fact and conclusions of law as to why the court reached that conclusion. As written, no factor is more important than the others unless the court deems it so. The court is also to consider the “practical impact of the parties’ need for separate residences and the attendant increase in living expenses” on the ability of the parties’ to maintain the marital standard of living.
Among the issues that are disputed in alimony cases is the duration of alimony. Under the proposed new alimony statute, for any marriage or civil union less than twenty years in duration, the total duration of alimony shall not exceed the duration of the marriage or civil union, except in exceptional circumstances. These exceptional circumstances which affect the duration of the alimony include: (1) the ages of the parties at the time of the marriage and at the time of the award; (2) the degree and duration of the dependency of one party on the other during the marriage or civil union; (3) whether a spouse has a chronic illness or unusual health circumstance; (4) whether a spouse has given up a career or career opportunity or supported the career of the other spouse; (5) whether a spouse has received a disproportionate share of the marital estate; (6) the impact of the marriage on either party’s ability to become self-supporting, including but not limited to either party’s responsibility to care for a child; (7) tax considerations of either party; (8) any other factor that the court deems equitable, relevant and material.
Another proposed change to the alimony statute is the creation of a rebuttable presumption that alimony will terminate when the obligor spouse attains full retirement age. The statute would allow a court to set another end date to alimony upon good cause shown. The statute would allow the rebuttable presumption to be overcome based on the ages of the parties at the time that retirement is applied for, the parties ages at the time of the marriage and at the time that alimony was awarded, the degree of economic dependency of the recipient spouse during the marriage, whether the recipient spouse relinquished or sacrificed claims for a longer duration of alimony or more substantial award, the duration of alimony already paid, the health of the parties, the assets of the parties at the time of the retirement application, whether the recipient is of full retirement age, and any other relevant factors.
If the obligor seeks to retire before full retirement age, the obligor must establish by a preponderance of the evidence that the prospective retirement is in good faith and is reasonable. The court is to consider current Case Information Statements as well as Case Information Statements from the time that alimony was established and any from the intervening periods when alimony was modified. The court must consider the age of the parties, the obligor’s field of employment and the generally accepted age of retirement in that field, any mandatory retirement age or the age at which continued employment would no longer increase retirement benefits, the obligor’s motive to retire and any pressure or incentives from the obligor’s employer to retire, the reasonable expectation of the parties during the marriage, the ability of the obligor to continue support payments and whether the obligor will continue to work part-time or reduced hours, the obligee’s financial independence and the impact of the retirement on the obligee, and any other relevant factors.
The new proposed statute also considers whether there is a “change in circumstance” due to a loss of employment that warrants a modification of alimony. No application will be permitted unless a person has been involuntarily unemployed for at least ninety (90) days, although the court would have discretion to retroactively modify support to the date of the terminated or reduced income. When a self-employed person seeks a modification of support based on an involuntary reduction in income, such a person must analyze for the court the economic and non-economic benefits that the self-employed person receives, and those which existed at the time alimony was established. The court would be allowed to enter temporary orders to suspend or reduce support or have support paid from assets during the period of review.
The proposed statute also makes a provision for a change in circumstance should the supported spouse cohabit with another person and defines cohabitation as 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.” To determine if cohabitation is occurring, the proposed statute directs the courts to consider intertwined finances, shared living expenses, recognition of the couple’s relationship in family and social circles, sharing household chores, frequency of contact and the duration of the relationship, whether the alimony recipient has received an enforceable promise of support from the other person, and any other relevant evidence.
Alimony remains an evolving area of law. If you have any concerns about alimony, the attorneys at James P. Yudes, A Professional Corporation are available to assist you.