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Breaking Up is Hard to Do: Alimony

It is long-standing law in New Jersey that divorcing parties are entitled to maintain a standard of living reasonably comparable to that enjoyed during the marriage. Innes v. Innes, 117 N.J. 496, 503 (1990); Crews v. Crews, 164 N.J. 11, 16 (2000). This often requires the earning spouse (or the higher-earning spouse) to provide support, or “alimony,” to the dependent spouse. The amount and duration of the alimony obligation is highly fact-sensitive and depends on factors like the disparity in incomes, the length of the marriage, the ability of the dependent spouse to improve his or her earning capacity, the age of the parties’ children, and any other special circumstances unique to that marriage. The alimony statute can be found within N.J.S.A. 2A:34-23.

1.Factors: An award of alimony is extremely fact-sensitive. Subsection (b) of the statute discusses the factors that the Court considers in determining the type, length and amount of alimon The factors are as follows:

  1. The actual need and ability of the parties to pay;
  2. The duration of the marriage or civil union;
  3. The age, physical and emotional health of the parties;
  4. 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;
  5. The earning capacities, educational levels, vocational skills, and employability of the parties;
  6. The length of absence from the job market of the party seeking maintenance;
  7. The parental responsibilities for the children;
  8. 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;
  9. 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;
  10. 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;
  11. The income available to either party through investment of any assets held by that party;
  12. 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;
  13. The nature, amount, and length of pendente lite support paid, if any; and
  14. Any other factors which the court may deem relevant.

2.The Four Types of Alimony: Four types of alimony can be awarded by a Court or agreed upon by the parties to a divorce. Discussed at length in subsections (c), (d), and (e) of the alimony statute, they are as follows:

  1. Permanent alimony: Permanent alimony (renamed and now known as Open Durational Alimony per the September 10, 2014, amendment to the statute) is reserved for marriages of long duration where economic need is demon Gordon v. Rozenwald, 380 N.J. Super. 55 (App. Div. 2005). If an award for open durational alimony is found to be not warranted, then the Court must state the basis for its findings, and may thereafter consider whether any of the other three types of alimony are appropriate. Open durational alimony will be awarded only if the marriage is long- term. Neither our case law nor statutes define what length makes a long-term marriage. Cases decided prior to the formal recognition of limited duration alimony deemed that a 10 to 13 year marriage was long-term (see Hughes v. Hughes, 311 N.J. Super. 15 (App. Div. 1998)), though the current trend is that a marriage would need to be longer than 14 years to warrant open durational alimony. Cases where the parties were married between 12 and 14 years are really “on the cusp.” In these cases, the Court must look closely at the facts of the case to determine whether open durational or limited duration alimony is appropriate.
  1. Limited duration alimony: Like open durational alimony, limited duration alimony is awarded when one spouse demonstrates an economic need in order reasonably to maintain the marital standard of living. The only difference between limited duration alimony and open durational alimony is the length of the marri Limited duration alimony was formally recognized by our legislature and incorporated into the alimony statute in 1999. The legislative intent behind creating limited duration alimony was to ensure that the dependent spouse in a marital relationship of less than substantial length was compensated for his or her contribution to the marital partnership. See Gordon v. Rozenwald, 380 N.J. Super. 55 (App. Div. 2005). The Appellate Division in Gordon noted that “limited duration alimony is available to a dependent spouse who made contributions to a relatively short-term marriage that…demonstrated the attributes of a ‘marital partnership’ and has the skills and education necessary to return to the workforce.” Id. at 65-66, citing to Cox v. Cox, 335 N.J. Super. 465, 483 (App. Div. 2000).

The alimony statute directs Courts to award limited duration alimony for “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.” N.J.S.A. 2A:34-23(c). Unfortunately, this does not give litigants much direction and it is difficult to predict what the term of alimony is going to be in a marriage that is not long-term. Litigants and Courts alike can try to tie in the end date of limited duration alimony with the occurrence of a particular future event. For example, in the unreported but oft-cited case of Dubois v. Brodeur, the wife sought a term that coincided with the anticipated college graduation of the parties’ youngest child in 2024, while the husband sought a term that coincided with the anticipated end-date of his career as a professional hockey player in 2012. DuBois v. Brodeur, 2009 WL 701998, *1 (App. Div. March 19, 2009). The trial court instead held that Brodeur’s alimony obligation should terminate in 2020, when the parties’ youngest child would complete her secondary education and Ms. DuBois would no longer be the children’s full-time caretaker. Id. It should be noted, however, that an award of 1.4 years of alimony for each year of marriage, as in the case of Dubois v. Brodeur, is rare and was dictated largely by the parties’ high standard of living.

In recent years, the trend for the length of a limited duration alimony award is closer to half a year to one year of alimony for every year of marriage, or less. See Weishaus v. Weishaus, 180 N.J. 131, 135 (2004) (three-year term after 15-year marriage); Newell v. Hudson, 376 N.J. Super. 29, 31 (App. Div. 2005) (four-year term after nine-year marriage); Tarantino v. Tarantino, 2006 WL 572197, *3-4 (App. Div. March 10, 2006) (limited duration alimony for five years after a five-year marriage); Whitesell v. Whitesell, 2006 WL 1302407, *4 (App. Div. May 12, 2006) (one year limited duration alimony appropriate in 2.5-year marriage “to permit child to gain in age and the wife to re-enter the employment market”); E.I v. L.I., 2006 WL 1764473, *8 (App. Div. June 29, 2006) (limited duration alimony of only three years after a 10-year marriage to enable wife to “live the same modest lifestyle the parties had acquired while living together”); Finne v. Finne, 2008 WL 2078504 (App. Div. May 19, 2008) (nine-year limited duration alimony award after a marriage of 10 years).

  1. Rehabilitative alimony: This is a short-term award of alimony that is specifically intended to enable one spouse to complete the preparation necessary for economic self-sufficiency, or to “rehabilitate” This type of alimony is commonly awarded when one spouse gave up his or her education or career in order to support the household while the other spouse continued in his or her education or career. Cox v. Cox, 335 N.J. Super. 465, 475 (App. Div. 2000). In order to determine the length of rehabilitative alimony, the supported spouse should set forth a plan that includes the steps he or she will take to become self-sufficient. For example, a litigant can show that he has enrolled in nursing school, that he intends to graduate in two years, and that he will need to be employed for one year in order to become self-sufficient. Rehabilitative alimony can be awarded in addition to open durational or limited-duration alimony. This results in a higher alimony award toward the beginning of the alimony period. Alimony would then be reduced when the “rehabilitation” period is over. Rehabilitative alimony can be modified upon a showing of changed circumstances or upon the non-occurrence of the event that the Court determined would make the supported spouse self-sufficient.
  1. Reimbursement alimony: This is a short-term award of alimony meant to eliminate the injustice that occurs when one spouse supported the other spouse so he or she could obtain an education, but then does not get to reap the benefits of that education due to the impending divorce. For example, a reimbursement situation would arise if one spouse paid the other spouse’s medical school expenses and then the parties divorced shortly after the medical school grad This type of alimony is limited to “monetary contributions made with the mutual and shared expectation that both parties to the marriage will derive increased income and material benefits.” Id., citing to Mahoney v. Mahoney, 91 N.J. 488 (1982). Like rehabilitative alimony, reimbursement alimony can be awarded in addition to open durational or limited duration alimony.

3.Imputing Income: The first factor in the alimony statute is the “actual need and ability of the parties to pay.” One way to measure a party’s need for alimony or ability to pay alimony is by looking at his or her income during the marriage, through tax returns, W-2s, profit and loss statements, and Case Information Statem However, in many cases, one spouse is not working or never worked, though he or she has the ability to work. In other cases, one spouse works, but not to his or her full potential, or has income that is not reported on W-2s or tax returns. In such situations, a Court may choose to impute income to that party. In other words, the Court will treat that party as though he or she earns or can earn a particular amount regardless of whether he or she actually earns that amount.

Imputation of income is a discretionary matter not capable of precise or exact determination, but rather requires a judge to realistically appraise capacity to earn and job availability. Storey v. Storey, 373 N.J. Super. 464, 473 (App. Div. 2004). When one party is unemployed or underemployed, one or both of the parties have the option of hiring an employability or vocational expert to opine as to the party’s earning capacity. The expert can also opine as to job availability in the fields in which the party would be suited for employment.

Paragraph 12 of Appendix IX-A to the New Jersey Court Rules discusses the imputation of income to parents, stating that “[i]f the court finds that either party is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:

  1. Impute income based on potential employment and earning capacity using the parent’s work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent’s former income at that person’s usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (“NJDOL”) (see http://lwd.dol.state.nj.us/labor/lpa/employ/oeswage/oeswage_inhtml)
  2. If potential earnings cannot be determined, impute income based on the parent’s most recent wage or benefit record (a minimum of two calendar quarters) on file with the NJDOL; or
  3. If a NJDOL wage or benefit record is not available, impute income based on full-time employment (40 hours) at the New Jersey minimum wage ($7.15 per hour).”

Pursuant to the same paragraph, in determining whether to impute income to a parent and if so, how much, the court should consider:

  1. What the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed;
  2. The reason and intent for the voluntary underemployment or unemployment;
  3. The availability of other assets that may be used to pay support; and
  4. The ages of any children in the parent’s household and child-care alternatives.

Imputation is not mandated in every case. The Storey court specifically pointed out that the need to care for a child, the lack of work in one’s field, a health condition and the loss of a professional license are all considerations that may weigh against the imputation of income. Storey, 373 N.J. Super. at 471. Courts apply a level of common sense when it comes to the imputation of income. In Khalaf v. Khalaf, 58 N.J. 63, 69-70 (1971), the Supreme Court did not impute income to a wife who had never worked during the 26-year marriage and had no substantial employment experience. The Court emphasized that had this been a marriage of short duration where the wife had not spent so many years as a housewife, then the result may have been different. Id. at 70.

4.Modifying or Terminating Alimony: In general, an alimony award is subject to modification or termination upon a showing of substantial and permanent changed circumstances. The Court in Lepis v. Lepis, 83 N.J. 139, 157 (1980) instructs that a moving party must demonstrate a prima facie showing of changed circumstances. Temporary circumstances are an insufficient basis for modification. Innes v. Innes, 117 J. 496 (1990) (citing Bonanno v. Bonanno, 4 N.J. 268, 275 (1950)). Courts have consistently rejected requests for modification based on circumstances that are only temporary or that are expected but have not occurred. Lepis, 83 N.J. at 157 (citing Bonanno, 4 N.J. at 275). Payor spouses constantly ask practitioners to file applications to modify alimony as soon as they become unemployed. If applications are hastily filed right after a period of unemployment, they will be denied. The Court will require a substantial period of unemployment, including proof of search for a replacement job, before finding an actual change in circumstances. Similarly, circumstances that are expected, but have not yet occurred, are not changed circumstances. For example, rumors of a layoff would not be enough to constitute changed circumstances. On the other hand, if the payor spouse whose employment required extensive physical labor suddenly becomes completely disabled, then that may be a substantial and permanent change in circumstances.

The party seeking modification of a support award has to demonstrate prima facie changed circumstances before the motion can proceed to discovery and the taking of proofs. Weishaus v. Weishaus, 180 N.J. 131, 141 (2004); Crews v. Crews, 164 N.J. 11, 28 (2000); Lepis v. Lepis, 83 N.J. 139, 146 (1980); Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). The Court will then examine whether the supporting spouse has the ability to continue paying the alimony previously ordered by the Court. Lepis, 83 N.J. at 157; Crews, 164 N.J. at 24.

  1. Case Information Statements on an Application for Modification of Alimony or Child Support: Pursuant to R. 5:5-4, the party moving for a modification of alimony or child support must include a copy of all prior Case Information Statements as well as a current Case Information While the opposing party must also include a copy of all prior Case Information Statements, he or she does not need to provide a current Case Information Statement until the Court finds a prima facie showing of changed circumstances.
  2. Cohabitation as a Ground for Modification/Termination of Alimony: New Jersey utilizes a two part test to determine whether cohabitation constitutes changed circumstances justifying a downward modification of al First, the payor spouse must make a prima facie showing that the dependent spouse is cohabitating. Ozolins v. Ozolins, 308 N.J. Super. 243, 245 (App. Div. 1998). Proof of cohabitation includes, but is not limited to, joint bank accounts, shared living expenses and household chores, holding themselves out as a social “couple” and sharing common meals. Konzelman v. Konzelman, 158 N.J. 185, 202 (1999). If the payor spouse can prove prima facie cohabitation, the burden then shifts to the dependent spouse to show that there is no economic dependency between the couple, and therefore the dependent spouse has a continuing need for support. Gayet v. Gayet, 92 N.J. 149, 154 (1980). This is often referred to as the “economic benefits test.” An economic benefit will be found, and alimony reduced accordingly, if (1) the cohabitant contributes to the dependent spouse’s support, or (2) the cohabitant resides in the dependent spouse’s home without contributing anything toward household expenses (meaning the dependent spouse contributes to the cohabitant’s support, even indirectly). Id. at 153.
  3. Retirement as a Ground for Modification/Termination of Alimony: Under Silvan v. Silvan, 267 J. Super. 578, 581 (App. Div. 1993), a payor spouse’s good faith retirement at age 65 automatically warrants a plenary hearing to determine whether a reduction or termination of alimony is appropriate. The Court will examine (1) the age of the parties; (2) whether at the time of the initial alimony award any attention was given by the parties to the possibility of future retirement; (3) whether the retirement occurred earlier than the parties previously anticipated; (4) the financial impact of the retirement on the parties’ respective financial positions; and (5) whether the motivation to retire was reasonable or based primarily on a desire to reduce alimony. Id. It is more difficult to modify or terminate alimony based on a payor spouse’s voluntary early retirement. Under Dilger v. Dilger, 242 N.J. Super. 380 (Ch. Div. 1990), the Court will examine whether the retirement was reasonable and in good faith. The Court will pay particular attention to the retiree’s (1) age, (2) health, (3) motives in retiring, (4) timing of retirement, (5) ability to pay maintenance after retirement, and (6) ability of the supported spouse to provide for himself or herself. Also significant are the parties’ reasonable expectations regarding the payor spouse’s retirement at the time of the original alimony award. For example, if the parties anticipated that the payor spouse would not retire until five (5) years after the payor makes his application, then the dependent spouse may not have had enough time to prepare to live on the reduced support. This would weigh against a finding of sufficient changed circumstances to modify the alimony award.

5.Enforcing an Alimony or Child Support Award: What are the options when the payor spouse has not satisfied his or her alimony or child support obligations? The first thing the payee spouse should do is file an application “to enforce litigant’s rights.” This is a fancy way of asking the Court to enforce something that has already been ordered. The Court Rules even provide for specific remedies for the violation of an alimony or child support order under R. 5:3-7(b), which include:

  1. Fixing the amount of arrears and entering a judgment upon which interest accrues.
  2. Requiring payment of arrears on a periodic b
  3. Suspension of an occupational or driver’s license.
  4. Economic sanction
  5. Participation in an approved community service program.
  6. Incarceration, with or without work release.
  7. Issuance of a warrant to be executed upon further violation of the judgment or ord

One way to avoid violations of child support or alimony orders is to have child support and alimony paid through the county probation department (in accordance with R. 5:7-7) via income withholding, wherein the support is automatically deducted from the payor’s paycheck. Once a payor accrues substantial arrears, the probation department can institute enforcement proceedings itself. This is an additional remedy to the payee spouse.