Posted on August 4, 2009 by Eric S. Solotoff

15 YEAR MARRIAGE NETS PERMANENT & REHABILITATION ALIMONY - BUT REMAND ON IMPUTATION OF INCOME TO WIFE

In an interesting unreported decision released on August 3, 2009 entitled Mathias v. Mathias, a wife was granted both permanent and rehabilitation alimony after a 15 year marriage. 

In this case, the husband was a state trooper.  The wife had cared for the children, by agreement, though she had worked on and off as a cosmetologist.  She was attending college seeking to be a registered nurse at the time of trial.

The trial judge imputed two income figures to the wife.  One as to what she was earning at the time and what she could earn in the future as a nurse.  The matter was reversed and remanded for further consideration as to both.  For the current income, there was a finding that the wife was underemployed yet the Court used her current income.  For the future, the statistics from the department of labor as to what a registered nurse could earn were used. 

The Appellate Division stated:

However, Danielle has not held a full time job since the children were born. She has never worked as an RN, has no experience in the health care field, and has no specific prospective employers. There was no evidence that the yearly income imputed by the trial judge was an appropriate rate for an inexperienced, recently licensed RN in New Jersey. In short, although the judge used the appropriate source for imputing income, he did not take other significant, relevant
factors into consideration.

The wife unsuccessfully appealed her request to impute more income to the husband than he was currently earning but which was consistent with prior history. Interestingly, a consideration in not imputing more income for overtime to the husband was his desire to spend more time with the children, which the Appellate Division deemed relevant and appropriate.
 

Of more significance to me, but a fact that was not appealed is that the wife was awarded permanent alimony after a 15 year marriage.  15 years has, of late, been deemed a mid term marriage and there has been some debate as to whether permanent alimony was merited in a 1 year marriage.  This case may be one that can be used to convince a judge who is on the fence.

 
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Posted on January 27, 2009 by Eric S. Solotoff

APPELLATE DIVISION REVERSES AWARD OF PERMANENT ALIMONY GRANTED IN AN 11 YEAR 9 MONTH MARRIAGE

In an interesting unreported decision in the matter of Valente v. Valente, on January 27, 2009, the Appellate Division reversed the award of permanent alimony to the wife after an 11 year 9 month marriage.  To view the full text of the case, click here.

The relevant facts are as follows:  During this 11 3/4 year marriage, the court deemed that the marriage was "traditional"  in that the husband was the sole income earner while the wife was the homemaker and caretaker of the three children. The husband  was a successful businessman who owned fifty percent of an insurance agency. He earned an average of $323,000 over three years prior to the filing of the complaint not including perquisites addressed brief in the opinion.  The wife had  a high school degree and worked in the clothing industry after high school until just before the birth of her first child, earning about $24,000 per year.

In reversing the aware of permanent alimony, the Appellate Division held:

"In our view, alimony of limited duration is appropriate in this case. The marriage of eleven years and nine months was of intermediate length. Considering plaintiff's age and intelligence as well as the fact that her children are both of school age, we see no reason why she cannot obtain employment within a reasonable time, and an award of limited duration alimony will give her incentive to do so. Moreover, at the end of a limited alimony term, plaintiff may seek permanent alimony or an extension of limited alimony if her earnings are insufficient to maintain her lifestyle without alimony."

 

This case in interesting in many respects. First, in a reported case, Hughes v. Hughes, a 10 year marriage was considered to be long term.  However, that case was decided before the limited duration alimony statute was passed.  As such, at that time, the court's really only had to options, permanent alimony and rehabilitative alimony.

More interesting is that the decision seemingly mis-states the law with regard to limited duration alimony when the court states that at the end of a limited alimony terms, the plaintiff can seek an extension or permanent alimony.  In fact, the alimony statute, N.J.S.A. 2A:34-23 (c) states:

"... An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurence of circumstances that the court found would occur at the time of the award.  The court may modify the amount of such an award but shall not modify the length of the term except in unusual circumstances." 

Further, given that the wife is a high school graduate who has been out of the workforce for many years and did not earn a significant income while working, it seems extremely unlikely that her earnings in the future will be sufficient to allow her to maintain the marital lifestyle.

In reality, maybe the court should have simply said, whether or not she can maintain the lifestyle when the alimony end, is of no moment.  Rather, this is a mid term marriage for which permanent alimony is not justified and that she is on her own after the arbitrary number of years of limited duration alimony she will ultimately receive. 

 
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Posted on November 8, 2008 by Sandra C. Fava

CHANGING THE TERM OF A LIMITED DURATION ALIMONY OBLIGATION

Pursuant to the statute, the general rule is that the tern of limited duration alimony cannot be extended without unusual circumstances.  A recent Appellate Division decision shed some light on what those circumstances could be.

Jane and Samuel had been married for less than seven years when they got divorced.  They had two children, ages 6 and 4 at the time of the divorce.  Both parties were attorneys although Jane stopped practicing law after the birth of their first child, within the first year of the marriage.  The parties negotiated and entered into an agreement designating Jane with residential custody of the minor children subject to Samuel's visitation and limited duration alimony in the amount of $500 per week for a period of four (4) years.  In addition, Samuel paid $500 per week in child support and child care related expenses to be paid 80% by Samuel, 20% by Jane.

At the time the parties negotiated their agreement, it was assumed that Jane would be able to obtain per diem employment in the law field.  Also, at that time, the oldest child was having difficulties with school and may have had ADD.  Since the time of the divorce, he has been diagnosed with ADD, Asperger's, Obsessive Compulsive disorder and Bi-Polar disorder.  As a result of these diagnosis, Jane argued that she was unable to obtain significant employment such that was contemplated at the time of the divorce.  Jane filed a motion seeking a continuation of her limited duration alimony, an increase in the amount of alimony, the production of financial information or in the alternative an increase in child support, and to establish a fund for their son's medical care.

The trial court denied Jane's application in its entirety.  She appealed and the Appellate Division reversed and remanded. the matter back to the trial court.  The Appellate Court held that an award of limited duration alimony may be modified based either upon changed circumstances or upon the non-occurrence of circumstances that the court found would occur at the time of the award.  A court may modify the amount of such an award but shall not modify the length of the terms except in unusual circumstances.  N.J.S.A. 2A:34-23(c).

In this case, the Court found that Jane had established a change of circumstance for an increase in the amount of the limited duration alimony as well as an increase in the term based upon unusual circumstances, i.e. the health of the parties' eldest child.

The court was careful to explain in it's unpublished opinion that a modification to the time for payment of limited duration alimony as well as the amount would only be based upon an ability to prove changed circumstances or upon the non-occurrence of circumstances that the court found would occur at the time of the award.  Thus, the burden is upon the party making the application (i.e. the recipient spouse) that circumstances have changed such that a modification is necessary and just.  Here, the child's condition was far worse than anyone anticipated at the time of the divorce and Jane simply could not work as contemplated when the matter was settled. 

To read the entire case, click here.

EDITOR'S NOTE:  This case in interesting because there is little law on extending limited duration alimony.  What  is also interesting is that the Appellate Division applied a similar analysis that is used when someone seeks to either extend rehabilitative alimony or convert it to permanent alimony.  Rehabilitative alimony is meant to provide a person with the opportunity to improve their earning ability in order to become self-sufficient, without the need for alimony.                                       Eric S. Solotoff

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