Question

How is alimony determined in New Jersey?

Michele Crupi - Family Law - Super Lawyers

Answered by: Michele Crupi

LaRocca Hornik Rosen Patti & Crupi LLC
Freehold, NJ
Phone: 732-409-1144
Fax: 732-409-0350

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            Alimony, or spousal support, is paid from one spouse to the other following a divorce. It is designed to help dependent parties maintain the same or similar standard of living to what was enjoyed during the marriage, to the extent allowed by the parties’ economic circumstances after the divorce.  It should be noted that after the filing of a Complaint for Divorce but before the divorce is finalized, New Jersey statute authorizes the court to award a dependent party pendente lite alimony “as the circumstances of the parties and the nature of the case shall render fit, reasonable and just.”  N.J.S.A. 2A:34-23.  The purpose of pendente lite support is to facilitate the ability of a supported spouse to satisfy his or her living expenses and retain counsel until all issues are resolved by way of a Property Settlement Agreement or Court ruling. A spouse seeking pendente lite support has the burden of proving the necessity of the support. The court will consider the parties’ pleadings, certifications or affidavits, financial information and possibly the oral argument of counsel when making a decision.

            There are currently four types of alimony awarded at the time of a divorce in New Jersey: permanent; limited duration; rehabilitative; and reimbursement.  These types of alimony are defined as follows:

            Permanent alimony: Alimony that is in effect until the dependent spouse remarries or either party dies. Permanent alimony is generally awarded following a marriage or civil union whereby the length of the marriage coupled with other factors warrants such an award. While the award may be permanent, modifications to the payment amount may be made upon a showing of a substantial, involuntary and permanent change in circumstances since the time of the divorce such as retirement, job loss, disability or other major life changes.

            Rehabilitative alimony: Many spouses sacrifice their education or career to care for the children or the home. After a divorce, these individuals may struggle to find gainful employment. Rehabilitative alimony is designed to give these individuals the time needed to gain an education, job skills or experience needed to obtain work or increase their income. To obtain rehabilitative alimony, the dependent party must demonstrate an effort to improve their earning capacities. It is possible to receive a combination of both rehabilitative and permanent alimony in situations where a supported party may be able to obtain the education or training needed to obtain employment, but would not be expected to earn enough income to maintain the lifestyle enjoyed during the marriage.

            Limited duration alimony: In some cases, a judge may award limited duration alimony. This type of support lasts for a fixed amount of time.

            Reimbursement alimony: In situations of a divorce after one spouse has supported the other during the time that their spouse was working toward obtaining a college degree, professional degree or license, reimbursement alimony may be awarded. Reimbursement alimony recognizes the sacrifices made by the dependent spouse, resulting in a reduced or lower standard of living, during the time that their spouse was enrolled in school or a training program, and reimburses the spouse for their financial contributions toward the other spouse’s educational and household expenses incurred.

            When deciding what type and amount of alimony to award, the court will consider a large number of factors, including:

  • The financial needs of both parties after the divorce
  • The ability of the payee to maintain payments
  • The length of the marriage
  • Age and health of each spouse
  • Standard of living enjoyed during the marriage
  • Income and earning capacities of both spouses (courts have discretion to impute income in situations where a spouse is underemployed or unemployed)
  • Education, skill level and work experience of both parties
  • The parenting roles of each spouse
  • Length of time spent away from job market while raising children or maintaining household
  • Tax impact
  • The equitable distribution of the marital property           

Income Tax Consequences of Alimony – Alimony payments are deductible by the payor and included in the income of the recipient for federal and state income tax purposes. Tax implications of any alimony award should be considered during settlement negotiations or trial.           

Pending “Alimony Reform Bill:” There are two alimony reform bills pending in the State of New Jersey. The first is Assembly Bill A845/S488, which is sponsored by Democratic Assemblyman Charles Mainor. This bill specifically outlines criteria to modify or terminate alimony payments, such as when a paying spouse retires, becomes unemployed, or experiences a reduction of income, or when the recipient spouse cohabits with another person. Assemblyman Mainor’s proposed legislation eliminates the term "permanent alimony" from New Jersey Statutes, and instead uses "alimony of indefinite term" to make it clear that alimony awards can be modified by the court when a party’s situation changes. 

           A second bill, Assembly Bill A1649/S1808, is sponsored by Assembly representatives Thomas Giblin and Pamela Lampitt, and is similar to the Massachusetts "Alimony Reform Law of 2011." This bill has the support of The New Jersey Bar Association. 

           Both bills propose changes that would eliminate permanent alimony and establish guidelines for determining the amount and duration of other types of alimony, taking into account the length of the civil union or marriage. At present, the length of time that a spouse will receive Limited duration Alimony is up to the discretion of the judge. Under the proposed bills, the longer the term of the marriage, the longer a supporting spouse will have to pay alimony. If a marriage or civil union lasts longer than twenty years, the court would have discretion to award alimony for an indefinite length of time. In situations of marriages lasting a shorter amount of time, Limited Duration Alimony would be based upon a percentage of the number of years that the parties were married.

            The bill would also provide that the amount of a limited duration alimony award should generally not exceed the recipient's need or thirty to thirty-five percent of the difference between the divorcing spouses' gross incomes.  However, a court would have the discretion to deviate from the guidelines, as long as it makes written findings to justify the departure.

            The court would also be permitted to impute income to either party when it finds that party is voluntarily underemployed or unemployed, and adds a provision that if an alimony recipient moves in with a new partner, the payer may seek suspension, modification or termination the limited duration alimony. Under the proposed alimony reform bill, if a "recipient establishes a cohabitation relationship with another person for a continuous period of at least three months" the alimony could be suspended and possibly eliminated.

            The bill would also provide that rehabilitative alimony could not exceed a term of five years. The court would have discretion to extend the term of rehabilitative alimony if it can be shown that unforeseen events prevented the recipient from becoming self-supporting and extending rehabilitative alimony would not constitute an undue burden on the payer.

            If signed into legislation, the pending alimony reform bill may allow alimony awards already established to be modified in certain situations after the bill takes effect so that the alimony obligation conforms to the guidelines in the bill.

            It is unlikely that of the alimony reform bills will become law within the next year. The Assembly Judiciary Committee recently asked that a commission be appointed to study the New Jersey’s present alimony laws and recommend a procedure to implement reform.

            Understanding how New Jersey alimony laws relate to your unique situation can be difficult, especially at this time of pending reform.  It is important to discuss your situation and concerns with an experienced lawyer.

            For answers to your New Jersey alimony questions, call family law attorney Frank LaRocca, Esq. and Michele Crupi, Esq. with LaRocca Hornik Rosen Greenberg & Blaha at 732-409-1144.

 

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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