New Jersey’s alimony law, N.J.S.A. 2A:34-23 was revised on September 10, 2014. Some of the changes in New Jersey’s controversial alimony law clarify durational limits and provide factors for modification and termination of alimony.
Probably the most significant change in the New Jersey Alimony Statute is that the term “permanent” alimony has been replaced with “open durational” alimony. Now in marriages of less than 20 years, the total duration of alimony shall not exceed the length of the marriage, except in “exceptional circumstances.”
Another significant factor that has been added to the law is “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, which neither party having a greater entitlement thereto.” In the past the court has focused on the ability of the payee to maintain the marital standard of living.
Of course every rule has its exceptions. “Exceptional circumstances which may require an adjustment to the duration of alimony include:
- The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;
- The degree and duration of the dependency of one party on the other party during the marriage or civil union;
- Whether a spouse or partner has a chronic illness or unusual health circumstance;
- Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;
- Whether a spouse or partner has received a disproportionate share of the marital estate;
- The impact of the marriage or civil union on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;
- Tax considerations of either party; and
- Any other factors or circumstances that the court deems equitable, relevant and material.
“In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.”
Based on the attendant circumstances New Jersey provides for several categories of alimony, open duration, limited duration, rehabilitative and reimbursement alimony. Alimony is modifiable with the exception of reimbursement alimony which “shall not be modified for any reason.”
It is important to note that the revised alimony law does not apply retroactively. Alimony “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: (1) a final judgment of divorce or dissolution; (2) a final order that has concluded post-judgment litigation; or (3) any enforceable written agreement between the parties.” The law will apply only to divorces in process, future divorces, and applications to modify alimony based upon changes of circumstances and retirement.
The court is now required to consider how long interim (pendent lite) support has been paid in determining final alimony. This rule should eliminate the incentive for the payee to utilize protracted proceedings to stall the divorce process with the hope that receiving monthly support payments on an interim basis would extend the overall duration of alimony payments.
The new alimony law provides that, “alimony may be modified or terminated upon the prospective or actual retirement of the obligor.”
“There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age…” (Full retirement age is defined as “the age at which a person is eligible to receive full retirement benefits under section 216 of the federal Social Security Act” which is currently 67.) The rebuttable presumption may be overcome based on consideration of the following factors:
- The ages of the parties at the time of the application for retirement;
- The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;
- The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;
- Whether the recipient has foregone, relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;
- The duration or amount of alimony already paid;
- The health of the parties at the time of the retirement application;
- Assets of the parties at the time of the retirement application;
- Whether the recipient has reached full retirement age as defined in the law;
- Sources of income, both earned and unearned, of the parties;
- The ability of the recipient to have saved adequately for retirement; and
- Any other factors that the court may deem relevant.
“Where the obligor seeks to retire prior to obtaining the full retirement age, the obligor must prove…that the prospective or actual retirement is reasonable and made in good faith.” This judgment is made by a consideration of the following factors:
- The age and health of the parties at the time of the application;
- The obligor’s field of employment and the generally accepted age of retirement for those in that field;
- The age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;
- The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;
- The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;
- The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;
- The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and
- Any other relevant factors affecting the parties’ respective financial positions.
Another significant change in the New Jersey alimony statute addresses an obligor’s request to modify alimony resulting from an involuntary loss of income. The revised law provides that where the changed circumstances arise from a loss of employment, an obligor may seek relief after “has been unemployed, or has not been able to return to or attain employment at prior income levels, or both, for a period of 90 days. Some of the factors the court must consider are; the reasons for any loss of income; the obligor’s documented efforts to obtain replacement employment or pursue an alternative occupation in the event of a job loss; whether there has been a good faith effort to find remunerative employment at any level and in any field in the event of a job loss; and the income of the obligor and the obligee’s circumstances.
“Alimony may be suspended or terminated if the payee cohabits with another person.” Cohabitating shall be determined by consideration of whether there are intertwined finances, shared or joint responsibility for living expenses, recognition of the couple’s relationship, living together, frequency of contact, duration of the relationship, and other indicia of a mutually supportive intimate personal relationship, sharing household chores, whether the payee has received an enforceable promise of support from another or other relevant evidence. There cannot be an absence of cohabitation “solely on the grounds that the couple does not live together on a full-time basis.”