Today marks the first anniversary of new alimony law. One year ago today, September 10, 2014, Governor Christie signed into law Bill A-845 which substantially amended the provisions of the New Jersey alimony statute – N.J.S.A. 2A:34-23.
The major changes to the law are succinctly delineated in the following alert by Eric Solotoff and Robert Epstein: New Jersey Enacts Alimony Reform Bill.
Some hailed the new law as marked reform, reflecting the changing attitudes toward spousal support that had swept some states in recent years. Others felt that the statute didn’t do enough to address the real concerns of paying and payee spouses alike.
But what have we learned in the year that has followed? Has the new alimony law really changed the practice one way or another?
Following the implementation of the statute, I received a flood of telephone calls and initial meetings from those wishing to modify their alimony obligations. Many times, however, litigants needed to be reminded that the law does not apply retroactively. Meaning, if you are paying permanent alimony on a 15 year marriage, ordered in 2010, you cannot now take advantage of the provision of the new statute that would have provided you with a limited duration alimony obligation under the same set of facts.
BUT – and this is a big BUT – the new law does have an effect if someone with an existing alimony obligation seeks modification of that agreement due to a changed circumstance such as a loss of income or retirement.
Personally, I am in the midst of litigating several cases under the new statute; some divorces, some dealing with retirement, and some dealing with loss of income of the paying spouse.
Below is a rundown of the three main areas in which I have observed the most changes in the way we litigate alimony cases:
Divorces. The duration of the marriage is now less of an issue during litigation. Whereas previously a marriage of 14 to 19 years may have arguably been considered “long term” and meriting of a permanent alimony award, now, any award of alimony in a marriage that is shorter than 20 years in duration cannot exceed the length of the marriage.
So get your math hats on everybody – there are numbers in this example.
If your marriage lasted 17 years, the alimony cannot exceed 17 years. If it lasted 14 years, no alimony lasting longer than 14 years. And so on…you get the idea.
I have also drawn upon the provision in the law that states that neither party has a greater entitlement to the standard of living (or a reasonably comparable standard of living) established during the marriage. Instead, the Court needs to examine what both parties will have upon divorce. The paying spouse’s ability to maintain the standard of living post-divorce was often overlooked before; now, it is more in focus than ever.
Loss of Income: A major area of litigation under the new statute is post-judgment litigation to modify due to loss of income or unemployment. For the non-self-employed obligor, an application for modification may be brought after the party has been unemployed or not able to attain employment at the prior income levels for a period of 90 days.
The new law is clear: we can now bring applications sooner.
We also have more payee spouses producing their income information sooner. The law now seems to require that the court to look at the payee spouse when the paying spouse’s initial application is being made. Under the old law, a court would not even look at the supported spouse’s financial circumstances until the supporting spouse proved that he or she had indeed experienced a change in circumstance.
Retirement: Under the old statute, the retiree was expected to make his or her application and prove to the Court that a “change in circumstance” existed to warrant modification or termination of alimony.
It was then left to the Court’s discretion to determine whether or not there had been a “change in circumstance” such that alimony should be modified or terminated.
Not only that, but there actually had to be a changed circumstance before the application was made.
Practically, under the old statute, the litigant would first need to retire, live on social security and other retirement income for a steady period of time, and only then make their application.
The new statute allows our clients to go in to Court and seek a modification prior to retirement so that they don’t have to live on cat food before they can even come in to Court to make the application to retire.
As an attorney, it is often difficult to gauge the practical effect of any new law. Not only do we need to litigate cases in previously unchartered territory, but we often need to await decisions from the Appellate Division interpreting the statute’s application before we get some actual guidance on grey areas of interpretation.
Of course, there are many other nuances of the new statute that now affect our day to day practice. Over the coming years, I expect that the new statute will evolve and different portions will have greater practical effect than the ones mentioned here.
So happy paper anniversary to the new alimony statute. Let’s see what this second year brings!
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.