There are a number of different types of alimony in New Jersey, three of which are nontraditional and two of which are traditional. The three nontraditional types of alimony include: rehabilitative alimony, reimbursement alimony, and pendente lite alimony.
Rehabilitative alimony is generally enacted as a short term measure to permit one party to become financially self-sufficient. This can occur through completion of an educational program or obtaining necessary work experience. Rehabilitative alimony is instituted for a specific purpose and, unlike traditional alimony, does not serve the purpose of permitting the parties to maintain the marital lifestyle.
Reimbursement alimony is another non-traditional arrangement. The purpose of reimbursement alimony is generally to, obviously, permit one party to reimburse the other. This generally occurs when one party has financed the education of the other with the expectation that he or she would receive the economic benefit of that investment later in the marriage. Reimbursement alimony is generally short-lived and terminates when its purpose has been fulfilled.
Pendente lite alimony is an award from one party to the other during the legal process of a divorce (which can, in some case, take years) but prior to the parties’ actual divorce. Pendente lite, when translated from Latin, literally means “pending the litigation.” Awards of this nature are generally grounded in necessity. Pendente lite support orders are typically established through the submission of statements from the divorcing spouses and case information statements. Case information statements contain detailed lists of ongoing expenses, assets, and debts for each party, with limited supporting documentation (such as tax returns). Since case information statements are personally prepared by the divorcing spouses, one will often challenge the validity of the other’s.
All support orders define only present financial obligations; those obligations are always subject to modification on a showing of “changed circumstances.” Nevertheless, divorcing parties need only make the lesser showing of “good cause” to modify pendente lite support orders, primarily because they are entered without the benefit of a full trial. In addition to being much easier to modify, pendente lite support orders can be reallocated at the time of trial as the Court sees fit and are generally terminated by the Final Judgment of Divorce.
Traditional alimony includes both open durational alimony (formerly known as “permanent” alimony) and limited duration alimony. Open durational and limited duration alimony are two sides of the same coin. The duration of alimony is reflective of the length and nature of the marriage, which is a highly fact-sensitive determination. Open durational alimony can be terminated or modified as a result of any number of the circumstances addressed below. Limited duration alimony terminates after a specified period of time. The goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.
As a result of recently enacted Alimony Reform Bill, in marriages of less than twenty years, there now exists a presumption that the supporting spouse should not be required to pay alimony for a number of years greater than the number of years the marriage lasted. For example, the supporting spouse generally will not be required to pay alimony for more than ten years as the result of a ten year marriage.
Generally, the purpose of traditional alimony and spousal support is to maintain the dependent spouse at the standard of living he or she became accustomed to prior to the parties’ separation. This measure is often referred to as the “marital lifestyle.” This lifestyle is not limited to the parties’ reasonable means and may include income from borrowing or parental support. It has been recognized that the process of determining alimony is imprecise, and the Court has wide discretion to impose an award that it deems fit, reasonable, and just. The factors that a Court must consider in awarding alimony are set by statute as follows:
Recently, the New Jersey Legislature passed an alimony reform bill that made significant changes to the laws of our State. Perhaps the most significant change is that, for marriages of less than twenty years, the duration of alimony should not exceed the number of years for which the parties were married in the absence of exceptional circumstances. So, if the parties were married for ten years, alimony generally will not exceed ten years.
Nevertheless, the Court is permitted to deviate from this general rule, and it must consider the following factors in determining whether exceptional circumstances exist justifying a deviation:
Preliminary, we note that this section only applies to modifications of traditional alimony (either open durational or limited duration). Pendente lite alimony is modifiable simply on “good cause shown,” as stated above. Rehabilitative and reimbursement alimony, due to their fixed and limited nature, are more difficult to modify. If you have questions about potential modifications of rehabilitative or reimbursement alimony (or about any of the material in this Divorce Guide), we encourage you to contact the DeTommaso Law Group.
As with child support, the standard for a change in the amount of alimony payments is that the party seeking modification has the burden of showing such “changed circumstances” as would warrant relief from the support or maintenance provisions involved. Nevertheless, what are the parties’ current financial circumstances to be compared with? The answer to that question is somewhat complicated. The goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage, and therefore the amount of alimony payments is inextricably linked to the concept of the “marital lifestyle.” If at the time of the divorce, either the parties agreed or the Court determined that they were able to maintain a lifestyle reasonably comparable to the marital lifestyle despite their separation, then the inquiry is whether the moving party’s financial circumstances have changed for the worse since then. If the parties could not maintain a lifestyle reasonably comparable to the marital lifestyle, the inquiry changes and it becomes relevant whether either party’s financial circumstances have either increased or decreased. This is so because an increase in available funds will permit the parties to return to the marital lifestyle. Once that lifestyle has been attained, further increases are merely the supporting spouse’s post-judgment “good fortunes” in which the supported spouse is generally not entitled to share.
We further note that Courts have consistently rejected requests for modification based on circumstances which are only temporary, including unemployment, or which are expected but have not yet occurred. If you have become unemployed and are unable to maintain your support payments, we recommend contacting the DeTommaso Law Group immediately. Your actions prior to the application and the proofs submitted to the Court will be critical to obtaining relief.
Recognized examples of changed circumstances include:
It is up to the moving party to make a prima facie (translation: at first sight) case that changed circumstances have occurred. Second, after the moving party has made a prima facie showing of changed circumstances, the court may order financial disclosures of both parties to allow the court to make an informed decision as to what, in light of all the circumstances, is equitable and fair.
There are further requirements in an application for a modification of support. For example, the New Jersey Court Rules require that requests to modify support must include a copy of the order that a party is seeking to modify. In addition, the request must be accompanied by the case information statement preceding entry of the order and an updated case information statement. The purpose of this rule is to permit the Court to make the mandatory analysis. That is, the Court must determine whether circumstances have changed since entry of the order in manner that warrants modification.
The recent alimony reform bill added a number of additional mandatory considerations when a Court reviews an application to modify alimony, the precise legal effect of which has not yet been fully explored. When a person who is not self-employed applies for a modification of alimony, the Court must consider:
However, no applications to modify alimony due to unemployment may be filed until 90 days have passed.
When a self-employed person seeks to modify alimony because of an involuntary reduction in income, then that party’s application for relief must include an analysis of the economic and non-economic benefits the party receives from the business both (1) at the time of the request and (2) prior to entry of the order being modified.
Our State’s alimony statute specifically provides that alimony may be modified or terminated upon prospective or actual retirement. The statute creates a presumption that alimony terminates upon attainment of full retirement age. Even so, that presumption may be overcome if, on consideration of the following factors, the Court determines that alimony should continue:
The Legislature also instituted additional required considerations for modifications of alimony based on “cohabitation.” Alimony may be suspended or terminated if the person receiving alimony cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage. It does not, however, require those two people to live together. When assessing whether cohabitation is occurring, the Court must consider the following:
In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the Court must also consider the length of the relationship, and a Court may not find an absence of cohabitation solely because the couple does not live together on a full-time basis.
The Courts have various remedies to them available on finding that a party has failed to respect an order for alimony. On finding that a party has violated an alimony or child support order the court may grant any of the following remedies, either alone or in combination:
This list, however, is not complete. The Court can order almost remedy that it deems justified given the facts and circumstances of a given case.
In addition, enforcement of alimony obligations may be overseen by the Probation Department, which will automatically enforce the obligation, and collected via wage garnishment. The benefits to automatic enforcement are innumerable and include saving substantial sums that would otherwise be spent on attorneys if the opposing party defaults on his or her financial obligation in the future. Moreover, the Probation Department creates an authoritative ledger of alimony paid and received, and it is less hesitant than certain judges to issue severe remedies like warrants for arrest and incarceration.
DISCLAIMER: The information presented here is of a general nature only, intended simply as background material, is current only as of the latest revision date in January 2015, omits many details and special rules, is not guaranteed to be accurate or applicable to your case, and cannot be regarded as legal advice. Viewing this information does not create an attorney-client relationship between the reader and the DeTommaso Law Group. We strongly recommend that those consulting the Divorce Guide secure the representation of an attorney, and we require that those consulting our Divorce Guide perform independent legal research and refrain from either acting or failing to act based on this information. Thank you.