Alimony & Spousal Support in New Jersey

Types of Alimony

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 (the full text of which is linked at the bottom of this article), 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.

Factors for Setting the Amount of Alimony

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:

  • The actual need and ability of the parties to pay;
  • The duration of the marriage or civil union;
  • The age, physical and emotional health of the parties;
  • 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, with neither party having a greater entitlement to that standard of living than the other;
  • The earning capacities, educational levels, vocational skills, and employability of the parties;
  • The length of absence from the job market of the party seeking maintenance;
  • The parental responsibilities for the children;
  • The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
  • The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
  • The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
  • The income available to either party through investment of any assets held by that party;
  • The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment;
  • The nature, amount, and length of pendente lite support paid, if any; and
  • Any other factors which the court may deem relevant.

Factors for Setting the Duration of Alimony

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:

  • 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 equitable distribution;
  • 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;
  • Any other factors or circumstances that the court deems equitable, relevant and material.

Modification of Alimony

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 or another experienced matrimonial attorney 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:

  • An increase in the cost of living;
  • Increase or decrease in the supporting spouse’s income;
  • Illness, disability or infirmity arising after the original judgment;
  • The dependent spouse’s loss of a house or apartment;
  • The dependent spouse’s cohabitation with another;
  • Subsequent employment by the dependent spouse; and
  • Changes in federal income tax law.

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, New Jersey Court Rules require that requests to modify support must include a copy of the order that a party is requesting be modified. 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, whether circumstances have changed since entry of the order that might justify some modification.

The recent alimony reform bill added a number of additional mandatory considerations when a Court reviews an application to modify alimony, the legal effect of which has not yet been determined. When a person who is not self-employed applies for a modification of alimony, the Court must consider:

  • The reasons for any loss of income;
  • Under circumstances where there has been a loss of employment, the obligor’s documented efforts to obtain replacement employment or to pursue an alternative occupation;
  • Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;
  • The income of the person receiving alimony; the person receiving alimony’s circumstances; and the person receiving alimony’s reasonable efforts to obtain employment in view of those circumstances and existing opportunities;
  • The impact of the parties’ health on their ability to obtain employment;
  • Any severance compensation or award made in connection with any loss of employment;
  • Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;
  • The reasons for any change in either party’s financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party’s financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;
  • Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and
  • Any other factor the court deems relevant to fairly and equitably decide the application.

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.

Retirement

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 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 or 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 this section;
  • 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.

Cohabitation

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:

  • Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
  • Sharing or joint responsibility for living expenses;
  • Recognition of the relationship in the couple’s social and family circle;
  • Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
  • Sharing household chores;
  • Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and
  • All other relevant evidence.

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.

Enforcement of Alimony

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:

  • Fixing the amount of arrearages and entering a judgment upon which interest accrues;
  • Requiring payment of arrearages on a periodic basis;
  • Suspension of an occupational license or driver’s license consistent with law;
  • Economic sanctions;
  • Participation by the party in violation of the order in an approved community service program;
  • Incarceration, with or without work release;
  • Issuance of a warrant to be executed upon the further violation of the judgment or order; and
  • Any other appropriate equitable remedy.

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.

CLICK HERE to read the full text of the recently passed Alimony Reform Bill.

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