Yesterday, I blogged on the proposed alimony reform legislation in New Jersey. At the end of that post, I posited the following questions. Is this really a radical change, or in many respects, does it simply codify what is often done in practice anyway? Will it really take away advocacy when circumstances so require?
Aside from removing the term "permanent alimony" and perhaps sickening reaction in causes in some people, does the proposed legislation really do more than codify the case law or what was done in practice, in many respects. Remember, is "permanent alimony" really permanent now anyway? Can’t people seek to retire already and isn’t retirement a change of circumstances? Don’t people already negotiate, when appropriate, limited duration alimony when people are divorcing close to retirement age, as opposed to buying a second litigation to occur a few years later?
The following are some other random thoughts, in no particular order and of no particular importance.
1) Is "indefinite alimony" a nicer term for "permanent alimony"
2) While certainly possible and appropriate in many circumstances under existing law for marriages of less than 20 years, permanent alimony was infrequently given in marriages less than 20 years after the limited duration alimony statute was enacted. In fact, I heard someone on a panel at the State Bar Convention last year state that 20 years was sort of a magic number ensuring permanent alimony.
3) The concept of imputing income to someone that is unemployed or underemployed essentially already exists in the case law and child support guidelines, and thus, really is not new.
4) Many people already use 30 to 35% of the difference in income to calculate alimony as noted in prior blogs. Of course, we have also blogged on the Appellate Division rejecting such a formula.
5) Are their still going to be fights as to whether the alimony should be 30% of the difference or 35% or somewhere in between? If the point is to get uniformity, why have a 5% range?
6) There will still be a chance to fight the percentages and the amount of alimony because the proposed statute says that the alimony should exceed the recipient’s need or the aforementioned percentages. While I would expect in most cases, the percentage will be used, in larger income cases, there may be a greater need than ever to have lifestyle analyses performed to define "need." This probably is making the forensic accountant’s giddy!
7) Is "need" the equivalent of "marital lifestyle?" If not, what is it? Is it mere subsistence?
8) If bright lines were really what was wanted, shouldn’t cohabitation, in and of itself, require a termination of suspension? Is the proposed statute largely just a codification of the case law that no one really disputed the interpretation of?
9) Like the schedule for the amount, is the schedule for duration not unlike what many people were doing, kind of by feel and/or compromise to avoid trial?
10) Because the durational terms, other than "indefinite", all are "not more than" some amount of months, will there still be fighting to get the actual terms less than the "not more than" figure?
11) While it seems fair to terminate alimony at retirement age if the person retires, if they continue to work full time, is it still fair? What if they made a ton of money after the divorce and can still pay alimony, and the other party would be destitute without it, is termination fair then? Under the current law, it probably would not be fair and alimony would continue.
12) Perhaps most startling about the proposed statute is the curative effect of the statute which would allow people to go back and modify the terms of alimony contained in prior settlements and court decisions. Aside from probably choking the court system to a halt during this two year period with which to do this, how is this possibly fair? As we know, alimony and equitable distribution are often interrelated. Sometimes, even child support and alimony are interrelated in the negotiation. Is it fair to ignore the potential trade offs in Marital Settlement Agreements to cram down the terms of alimony? It hardly seems so.
13) Even if cases were tried and/or the issues were not interrelated in terms of a settlement, is it fair to change the term giving the recipient no time to prepare for perhaps a drastic change. Maybe they would have saved more if they knew alimony would end or end sooner? Maybe they would have bought a less expensive house or less expensive cars, or sent their children to less expensive schools, etc. if they knew that the alimony would be shortened.
Again, these are just some random musings. It does not represent our support or opposition to the statute. Rather, it is just food for thought about the possible, practical effects of the proposed legislation.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.