ALIMONY TERMINATES AT REMARRIAGE, DOESN'T IT?
Alimony terminates at remarriage, doesn't it? At least that is what we have learned. In fact, there is even a statute, N.J.S.A. 2A:34-25, that says permanent or limited duration alimony terminates upon death or remarriage of the recipient. This is not the case for reimbursement or rehabilitative alimony, per the statute, absent an agreement to the contrary or good cause.
Fast forward to November 17, 2009, the date of the release of the unreported (non-precedential) Appellate Division opinion in the case of Kelly v. Arato.
In this case, the parties were married in 1985 and divorced in 2004. Their agreement called for $100 per month of alimony and $3100 per month in child support. The wife remarried 6 months after the divorce and the husband immediately stopped paying alimony. Four years later, when the husband's attorney wrote to address college for the children, the wife raised the issue of the non-payment of alimony. After cross motion, the trial judge denied the husband's motion to terminate alimony as well as the wife's motion for payment of alimony arrears. Both parties appealed.
The problem in the matter appears to be in the drafting of the parties' Property Settlement Agreement (PSA). Per the PSA, alimony would continue "for the natural lives of the parties,
unless terminated by any one or more of the following" and then lists two events: repudiation or modification of the PSA by the written "mutual consent of the parties"; and defendant's death.
The wife argued that because remarriage is not included as an event that would terminate alimony the parties agreed it would continue. The husband argued that the parties did not have to expressly provide for what the Legislature commands and that the PSA's silence on that point reveals an
intention that the right to termination set forth in N.J.S.A. 2A:34-25 would apply.
The Appellate Division held:
In most instances, we would find little merit in the contention that the complete absence of any mention of remarriage in a PSA would permit a finding that the payor spouse waived the right set forth in N.J.S.A. 2A:34-25 to have alimony cease upon the supported spouse's remarriage. By way of comparison, Ehrenworth dealt with the enforceability of a PSA that stated the husband's alimony obligation would continue to be paid "regardless of whether or not the [w]ife remarries." 187 N.J. Super. at 345. Here, the PSA makes no mention of remarriage, but it does have a provision that may be plausibly read as excluding any other terminating event than those listed. By the same token, the PSA's silence on the subject of remarriage also renders plausible the contention that defendant waived the rights set forth in N.J.S.A. 2A:34-25. In short, the language of the PSA neither conclusively establishes nor conclusively negates plaintiff's remarriage as an event that would terminate alimony. As a result, the judge was mistaken insofar as she held that, as a matter of law, the PSA required a continuation of alimony in this circumstance. The dispute cannot be resolved by resort to the four corners of the PSA. It requires a consideration of the parties' actual intentions at the time of formation.
As such, the matter was remanded for a hearing.
There are a few things of interest to me. If there really was an alimony obligation, why did the wife wait 4 years to say somthing about it. On the other hand, given the fact that the alimony was $1,200 per year and the child support was $37,200 per year - a rather odd support allocation - as well as how quickly the wife remarried, one could surmise that the remarriage was contemplated and the support negoatiated accordingly.
The bottom line is that this seemingly could have been avoided had the PSA been clear about the intention - whatever it is.
One last comment - 4 years of aimony arrears total $4,800. This litigation had to cost several times that amount with more litgation to come. This seems to fail a cost benefit analysis on both sides.
