On July 3, 2011, there was on op-ed in the New York Times by Alexandra Harwin entitled Ending the Alimony Guessing Game.

In the piece, she posits that

The unpredictability of alimony rules imposes several costs. Negotiating a settlement deal is much harder when spouses have no idea what they’ll end up with if they take their chances in court. Litigation drags on and the bills pile up when lawyers and experts have to prove their clients deserve any alimony at all. All the while, the emotional costs mount as people awaiting divorce continue in unhappy marriages; some stay married indefinitely because they don’t know if divorce will leave them with enough money to make it on their own. That’s particularly troubling in cases of domestic violence: some wives endure years of abuse because they can’t be sure husbands who control the family finances will be required to give them the money they need to live if they leave. New York’s law minimizes these costs by establishing a mathematical formula to calculate temporary alimony, which one spouse pays the other while the divorce is pending; it also allows judges to adjust those awards up or down under special circumstances.

She also believes that guidelines would make the judges jobs easier and the divorce process fairer.

At first blush, this makes sense – but does it really?  Since all alimony guidelines are income based (and as she points out, they are only for temporary support), they ignore parties’ individual circumstances that are not income related.  In a way, guidelines presume that all peoples expenses are the same, that all people with similar income pay the same amount of taxes, that there are no special circumstances, that some families may be savers while others spend every penny earned (and then some), etc.

In NJ, to the extent possible, the goal of temporary support is to maintain the status quo. Sometimes it seems like or certainly could feel to the support payer to being unfair, especially where the other spouse is not working and the payor is paying for most direct expenses plus some amount for personal expenses on top of that.  The risk with guidelines, however, is that certain bills could never get paid if the personal responsible is not given enough money to pay and the other party is not required to make direct payments. 

On the other hand, does New Jersey have de facto guidelines anyway?  More and more, you hear about the "rule of thumb" – i.e. a mathematical formula where the lower income (or what that person could earn if not employed or working to their capacity) is subtracted from the payor’s income and alimony is fixed at one-third of the difference.  You see lawyers use this all of the time.  You see judges do this, even when they know that they cant, in trying to settle cases or even in decisions after a trial.  They don’t say that they are doing it but you can do the math and see that they are. The rule of thumb may be helpful to get a starting point for review, but if it is the absolute end point, ignoring all other factors, that could be a problem.

 

In New Jersey, we have an alimony statute that has 13 factors that a court must consider and make fact findings about  when deciding alimony.  The statutes is as follows:

In all actions brought for divorce, divorce from bed and board,or nullity the court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, the following factors:

(1) the actual need and ability of the parties to pay;
(2) the duration of the marriage;
(3) the age, physical and emotional health of the parties;
(4) the standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) the earning capacities, educational levels, vocational skills, and employability of the parties;
(6) the length of absence from the job market of the party seeking maintenance;
(7) the parental responsibilities for the children;
(8) the time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) the history of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) the equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) the income available to either party through investment of any assets held by that party;
(12) the tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
(13) any other factors which the court may deem relevant.
 

The statute theoretically takes into account the kinds of differences I noted earlier as well as a fact that new two families circumstances are the same.  While guidelines may be helpful to so that there are not huge disparities from judge to judge, they could also do significant damages by creating a windfall or significantly hurting a recipient based upon the particular facts of their case.  Moreover, suggesting that guidelines are necessary seemingly suggests that judges are not capable of analyzing the facts and the law – i.e. the thing that they get paid for.  That supposition would essentially spell doom for the whole legal system. 

So, while I can see some merit to alimony guidelines, I think that our statute, properly applied, provides the most fairness to people going through process since no two families are alike.

__________

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 esolotoff@foxrothschild.com.

Leave a Reply

Your email address will not be published.