I have blogged many times about the fact that there is no formula for alimony, and moreover, whenever a trial court imposes a formula, it is always reversed by the Appellate Division. In 2020, I blogged on the last reported decision on the issue, S.W. v. G.M., which firmly rejected formulas and gave a pretty clear and concise reason why, as follows:
To be clear, N.J.S.A. 2A:34-23(b)(4) does not signal the Legislature intended income equalization or a formulaic application in alimony cases, even where the parties spent the entirety of their income. Had the Legislature intended alimony be calculated through use of a formula, there would be no need for the statutory requirement that the trial court address all the statutory factors. The Legislature declined to adopt a formulaic approach to the calculation of alimony. See Assemb. 845, 216th Leg., 2014 Sess. (N.J. 2014) (declining to enact legislation computing the duration of alimony based upon a set percentage).
The Court went on to discuss the need to and the importance of making findings regarding marital lifestyle, as follows:
The importance of finding the marital lifestyle cannot be overstated. It is at once the fixed foundation upon which alimony is first calculated and the fulcrum by which it may be adjusted when there are changed circumstances in the years following the initial award. …
In Hughes, the parties spent more than they earned and relied on borrowing and parental support to meet the marital lifestyle. 311 N.J. Super. at 34. The trial judge discounted these additional funds and determined the lifestyle using only the family’s earned income, which the judge termed the “real” standard of living. Ibid. We held “[t]he judge . . . confused two concepts. The standard of living during the marriage is the way the couple actually lived, whether they resorted to borrowing and parental support, or if they limited themselves to their earned income.” Ibid.
In many cases, parties live above their means or spend their earnings and assets to meet expenses. In such instances, a finding of the marital lifestyle must consider what the parties spent during the marriage and not merely offer a nod to a bygone, unattainable lifestyle. In this case, the trial judge overlooked the lessons from Crews and Hughes and our instruction to find, numerically, the marital lifestyle. To the extent Crews and Hughes implicitly required that marital lifestyle be determined numerically, we now explicitly state a finding of marital lifestyle must be made by explaining the characteristics of the lifestyle and quantifying it.
The issue of formulas came on again in Galski v. Galski , an unreported (non-precedential) Appellate Division decision released on December 2, 2022. In that case, the court imputed $250,000 to the payor as his income and fixed alimony based upon same. Moreover, because his income was both variable and paid via salary and quarterly bonuses, he argued for a formula to have his alimony paid in part from his base salary and in part from his quarterly commissions, with an annual cap of $70,000. The Appellate Division rejected this in one sentence, as follows:
He cites no precedent requiring the court to take such an approach and we see no convincing reason to limit the court’s discretion in this fashion.
Not only is there no precedent, time and again Appellate Court’s rule that it cannot be done. That is not to say that parties themselves cannot agree to this. In fact, it happens frequently when the payor spouses income varies substantially, year to year. But court’s cannot order it at trial, which the payor in this case learned.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Department 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 is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.