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.