Since Governor Christie signed into law the New Jersey alimony reform bill in September 2014, many divorced or divorcing spouses have asked what it means for the duration of the alimony payment specific to his or her case. Do you have reason for optimism? Do you have reason for concern? While the law is still as fresh as can be and largely untested, the questions have some answers….and raise some more questions.
While I previously blogged about the general changes in the law, the answers to the duration-related questions are not as simple as they may seem at first glance. In case you were wondering, this blog post is not going to focus on the new provisions addressing a termination or modification of alimony in the event of retirement, cohabitation or a down income, each of which could also modify an existing alimony duration. I will devote future blog posts to those specific portions of the amended law.
First, does the new law apply to your case? The law generally only impacts the duration of alimony for those cases that were ongoing at the time of the law’s enactment or future divorces. So, if your divorce was finalized PRIOR to the amendment’s effective date in September, whether by agreement or by a final judgment entered by a family judge following trial, you may be out of luck unless your situation fits into another portion of the amended law including, but not limited to, retirement, a down income, or cohabitation.
Next, does the new law really mean that your alimony will last for the length of the marriage? The new law provides that the duration of alimony cannot be for longer than the length of the marriage, except if the marriage lasted for 20 years or longer. In that case, permanent alimony still exists (although now categorized as the less controversially named and more practically applied “open durational alimony”). The short answer is, it depends.
There was no language to this effect in the prior version of the law, and in most situations (of course, depending on the circumstances) family law judges were not inclined to award alimony for a duration equal to that of the length of the marriage. So…..now what? The practical effect is that payee spouses are more likely to argue than before for a duration of alimony that lasts for the length of the marriage (or close to it).
What about these “exceptional circumstances” that could impact on the duration of alimony? The new law provides that certain “exceptional circumstances” may result in a duration of alimony longer than the marriage (even if the marriage lasted for less than 20 years). These circumstances include, but not limited to, the ages of the parties, any health issues, career sacrifices and support, and more. While the language is somewhat simultaneously nuanced and expansive, from a practical standpoint the enumerated circumstances are largely similar and/or encompassed by the standard statutory alimony factors that a court will consider in awarding alimony. If there is a particularly unique set of circumstances in your given case – for example, a chronic illness that heightens the need for a longer alimony duration – the court would have considered it before and it will do so now in rendering a duration determination.
How is my duration impacted by all of those payments that I made/received during the case? Before the amendment, many payor spouses would argue that the length of time that payments have been made during the divorce should be considered when determining the duration of alimony. On the flip side, the payee spouse would assert that payments made during the case should not count towards the post-divorce duration of alimony.
Now, the nature, amount and length of support payments made during the divorce are to be considered by a court in rendering an alimony award. Payor spouses looking to move a matter along and disincentivize the payee spouse to delay a conclusion have cause to rejoice, although the ultimate impact of such payments remains within the discretion of the trial judge.
The Takeaway: The new law is just getting its feet wet, and litigants, attorneys and trial judges are wading their way through the unchartered waters. One of the major goals in amending the alimony law was to address the way in which the duration of an alimony award is decided, most specifically in eliminating the phrase “permanent” alimony and limiting those situations in which “open durational” alimony – permanent alimony’s friendlier next door neighbor – would apply. The simple and unsatisfying answer for both parties is that payor spouses will not have to pay alimony for longer than the duration of the marriage except in cases of exceptional circumstances. The simple answer will not always be the right answer, though, as litigants arguing for or against the existence of exceptional circumstances will likely become anything but exceptional.
Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office. He can be reached at (973) 994-7526, or firstname.lastname@example.org.
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