There has been an alimony reform movement that has been gaining traction throughout the country. Some of the major concerns appear to be this issue of permanent alimony and the lack of uniformity in alimony awards, both in amount and duration, from case to case. In the recent past, alimony laws have been reformed in Florida, Massachusetts and Maryland. Is New Jersey next?
On March 7, 2013, A3909 was introduced in the New Jersey Assembly, which, if passed, would radically change alimony as we know it in New Jersey.
The following are a highlight of the changes:
- All references to permanent alimony are deleted from the statute, though, as noted below, for marriages of more than 20 years, an indefinite award of alimony can be be granted
- The concept of imputing income to someone that is unemployed or underemployed, which already exists in the case law and child support guidelines, would be codified
- The amount of limited duration alimony should not exceed the recipient's need or 30 to 35 percent in the difference between the parties gross incomes at the time of the initial award, though a court would have the discretion to deviate. Some reasons for deviation would be advanced age, chronic illness, unusual health circumstances, whether the payer is providing or ordered to provide health insurance to the recipient, sources and amounts of unearned income not allocated in equitable distribution, the recipient's inability to become self-supporting based upon the abuse of the payer, and others, including a catch all "any other factors that a court deems relevant and material."
- The case law regarding cohabitation would essentially be codified. Specifically, alimony could be modified, suspended or terminated if the other party has cohabited for 3 months. Economic dependence would still be considered. In addition, if suspended and the cohabitation ends, alimony could be reinstated, but the original terms cannot be extended.
- Rehabilitative alimony cannot be for more than 5 years. The case law regarding extending rehabilitative alimony would seemingly be codified to allow it to be extended if the recipient attempted to become self supporting but was unable to do so because of unforeseen events and, extending it would not constitute an undue burden on the payer.
- Presumptive schedules for duration would be established, as follows:
- 0-5 years - not more than half the number of months of the marriage
- Greater than 5 years to 10 years - not more than 60% of the number of months of the marriage
- Greater than 10 years to 15 years - not more than 70% of the number of months of the marriage
- Greater than 15 years to 20 years - not more than 80% of the number of months of the marriage
- More than 20 years - the court has the discretion to award alimony for an indefinite amount of time.
- If you think that indefinite means permanent alimony, think again because alimony shall terminate upon the payer obtaining full retirement age which is defined as when the payer is eligible for the old age retirement benefit under the Social Security act. Arrears accrued to that point would still be due and owing. The payer's ability to work or decision to work past the retirement date shall not constitute grounds to extend alimony in most circumstances.
The bill would permit modification of alimony awards existing on the effective date to conform to the provisions of the bill. Limited duration and rehabilitative alimony awards could be modified to conform to the durational guidelines provided in the bill, and permanent alimony awards could be converted to limited duration alimony awards and modified to conform to the durational guidelines for limited duration alimony. A motion for modification could be brought by either party to the award and the moving party would not need to show a change of circumstances to receive a modification. The bill additionally provides that its enactment would not constitute a change of circumstances for the purposes of modifying the amount of an existing alimony award and it would not permit modification of an award that the parties previously agreed could not be modified.
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? More on these questions in a later post.
Stay tuned for that and updates on the progress of this proposed statute.
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 .