A divorce action generally results in a Final Judgment of Divorce which dissolves the bonds  of matrimony – including the part about "in good times and bad . . . "  This however, is not always the case.  Certainly if two people have children together their relationship with each other, although different, will have to continue if they are to co-parent.  But what about a long term marriage at the end of which a Judge orders permanent alimony?  Through permanent alimony the financial relationship of two individuals live on "in good times and bad."

In a recent appellate division case, Knips v. Knips, the Court reversed the trial Court’s determination regarding alimony where, after thirty-four years of marriage and an award of $175 per week in permanent alimony, the plaintiff could not afford to lead a "legitimate middle-class" lifestyle.  As the Court in Knips states, "alimony is intended to allow the dependent spouse to live at the marital standard of living, not just ‘bare survival’" [emphasis added].  The idea is that If the parties enjoyed a middle-class lifestyle during the marriage, then the parties should be able to enjoy a similar lifestyle after the marriage.  If one party was mainly responsible for financially supporting that lifestyle, then a Court will likely order that they continue to be financially responsible (in the form of alimony payments).  And, if among other factors, the marriage was long enough then then Court will order that this financial responsibility be permanent (i.e. permanent alimony). 

In this case, the parties led a middle-class lifestyle during the marriage: they owned a home with a pool and a deck, they vacationed at the New Jersey Shore, and they went out to eat at chain restaurants. Moreover, throughout the marriage defendant-wife was consistently the primary wage earner and therefore responsible for maintaining the parties lifestyle. At the time of divorce, defendant was on track to earn $86,000 (although there was an issue at the time of trial as to whether she was earning less). Plaintiff-husband, on the other hand, worked as a waterfront rigger and then taught karate in the school that defendant and plaintiff opened jointly (the Court notes that defendant managed the financial and office work while plaintiff "worked in the instructional part of the business with the other employees"). At the time of the divorce plaintiff was receiving disability payments of $1112 per month and was occasionally singing for $125 per hour (although he did not report this income and the trial Court imputed $125 per week to him) for a total annual income of $19,844. With alimony payments of $175 per week plaintiff’s annual income was increased to $28,944, whereas defendant’s annual income was reduced from $86,000 to $76,900. What is more, plaintiff was living in federally subsidized housing, paying approximately $281 per month in rent, and claimed that at times he could not afford food and would go to a local food pantry. Defendant, however, had purchased a two-bedroom condo where she lived with her daughter who was, at that time, unemployed. The Court determined that the defendant’s lifestyle "closely approximates the middle-class lifestyle of the long-term marriage" whereas the plaintiff’s lifestyle clearly did not.

The parties are no longer married, however, the trial Court awarded plaintiff permanent alimony from the defendant. The Appellate Court does not take issue with such an award. What the Appellate Court does take issue with, however, is the amount of alimony. Plaintiff’s annual income, comprised of his disability, the imputed income from entertaining, and alimony from defendant, is simply not enough for plaintiff to sustain a middle-class lifestyle (which he enjoyed with defendant during the marriage). The result is that defendant – who is financially responsible in good times and bad – must pitch in and help.

Interestingly, this case also raises an issue relating to counsel fees. The Appellate Court notes, with the air of a warning to Judges, in deciding whether or not to award counsel fees the Court must consider the factors set forth under the Court Rule governing counsel fees, the financial circumstances of the parties and the good or bad faith of either party. In Knips, however, the Court merely determined that the defendant did not have the capacity to pay counsel fees and, therefore, each party should be responsible for their own. Of note, defendant represented herself throughout the divorce matter whereas plaintiff incurred $13,000 in attorney fees. The Appellate Court is not satisfied with the trial Court’s findings as to attorney fees and remands this issue back to the lower Court. Specifically, the Appellate Court notes the trial Court’s failure to address "the sufficiency of evidence that fees were incurred by defendant, their amount, or the reasonableness of such fees." Noting additional factors that the Court failed to address regarding counsel fees – the effect of plaintiff’s expenditures on marijuana and on the parties’ daughter’s home in Georgia on defendant’s ability to pay counsel fees – the Appellate Court declines to discuss, but rather states that the trial Court must make findings as to what weight should be accorded these factors in determining an award for attorney fees.

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