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NJ Family Legal Blog Pertinent Information As It Relates To New Jersey Family Laws

Reflections on Opting Out and Alimony (and Other Musings)

Posted in Alimony, Divorce, Resources

Sheilah O’Donnel tells herself that her new home, a townhouse in a development in Chevy Chase, Md., just a stone’s throw from a Safeway, isn’t really all that bad. Sure, it’s near a gas station. And the front window, with its cheerily upholstered cushions, overlooks a dreary parking lot. And yes, it’s kind of small — “an apartment,” O’Donnel, who is 44, sometimes says bitterly, when she’s reminded of her former life with her ex-husband in their custom-built, six-bedroom home. But then again, it’s perfectly maintained and impeccably furnished, and most important, it’s rented with her own money, from the first real job she has had in almost a decade.

The above is an excerpt from the New York Times Magazine Article entitled “The Opt-Out Generation Wants Back In.” 

The article explains how sixty years after the flock of women released themselves hungrily into the workplace, a different story began to unfold.  It was the story about women wanting it all; women who believed that feminism was just as much about choosing to build a successful career as it was about choosing to stay home.  And stay home they did:

In 2000, for example, with the economy strong and books like “Surrendering to Motherhood,” a memoir about the “liberation” of giving up work to stay home, setting the tone for the aspirational mothering style of the day, almost 40 percent of respondents to the General Social Survey told researchers they believed a mother’s working was harmful to her children (an increase of eight percentage points since 1994).

This collective mentality gave rise to a new kind of revolution, explored in 2003 by media outlets such as “60 Minutes” the New York Times and Time Magazine, was ultimately dubbed it the “Opt-Out Revolution.”

But some years later, many wanted to “opt back in.” As the article explains, this was not always easy for many women – some of whom were featured in the expose.

(Photo courtesy of freedigitalphotos.net)ID-100174449

While certainly the stories provided a glimpse into the darker side of the mantra repeated in our youths that “women can have it all”– whether that be at home or in the workplace – as a divorce lawyer, I, of course looked at it from a different perspective.

I considered the alimony recipient who is oftentimes thrust back into the workforce after a long absence.  This is because of the manner in which Courts award alimony.

For example, in New Jersey, when determining the amount and duration of an award for alimony, the judge will look at several different factors, including:

  • the requesting spouse’s actual needs and the other spouse’s ability to pay
  • the duration of the marriage
  • each spouse’s age and physical and emotional health
  • each spouse’s income, earning capacity, education level, and employability
  • the standard of living during marriage
  • parental responsibilities
  • the time and expense necessary to obtain education or training for the dependent spouse to become self-supporting,      and
  • each spouse’s financial or non-financial contributions to the marriage.

It is important to note the factor that courts consider the “earning capacity” of each spouse rather than his or her actual income.  As a result, a family’s decision for one spouse to “opte out” does not necessarily entitle him or her to alimony, or alimony at the term and amount anticipated.

Many times, this will mean that the non-monied spouse may return to work following the divorce.  But at a price.

The NY Times article, and in particular, O’Donnel’s story, highlights the difficulties of “opting-in” post-divorce.   While O’Donnel was previously earning $500,000 per year at Oracle, the technology company, after her decade-long absence from the workforce, she opted back in at a salary that was one-fifth of her prior earnings.

But as the story suggests, she was “in,” for better or for worse.  What O’Donnel really took to heart were the words of her attorney when she told him that she had been advised not to re-enter the workforce to obtain a more favorable support award:

He said, ‘You have to look at the next 30 years of your life, and if you’re in control of the situation, and you have a job that’s paying you money, he’s going to be far less powerful over you in the process.’

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.