It has been said over and over again that there are no formula’s to determine alimony. As I have blogged in the past, other than one legal malpractice referencing the formula or “rule of thumb”, virtually every time the Appellate Division gets a case where a formula was used, the case is reversed
As noted yesterday, the long awaited decision in the Gnall case was released today. Previously, we have blogged about the Gnall v. Gnall case. In this case, the Appellate Division deemed a 15 year marriage to be “long term” and remanded the matter for consideration of permanent alimony. This case exploded onto the scene…
Since Governor Christie signed into law the New Jersey alimony reform bill in September 2014, many divorced or divorcing spouses have asked what it means for the duration of the alimony payment specific to his or her case. Do you have reason for optimism? Do you have reason for concern? While the law is still…
We have done dozens of posts on this blog about alimony over the last 5 years. Recent experiences have convinced me that it is time to get basics. Despite all of the cases that say that you can’t use a formula (the rule of thumb we have discussed previously on this blog), more and more, people are espousing a blind adherence to the rule of thumb. In one recent case with income of a few hundred thousand, an adversary told me that it was the maximum amount of alimony that I can get, despite the fact that it came no where close to meeting my client’s already pared down budget. In another case, where the income was a few million, one side was arguing that the rule of thumb was a minimum, as if there should be no consideration of any other factors.
Despite the calls for alimony reform and formulas, as we have said many times, courts deciding cases cannot use rules of thumb. Even when they do, they can’t tell you that they did. Rather, they have to review the alimony factors set forth in the statute – remember them? Here, they are again, from N.J.S.A. 2A:34-23(b):
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established in the marriage or civil union 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 or civil union 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.
Alimony is supposed to be decided based upon the statutory factors, right? There really isn’t a formula to determine alimony, right? Even if there is this formula that is used to get a ball park figure for a range of alimony, judge’s can’t use it, right? So what happens when they do?
We have blogged…
This being a family law blog, we talk about alimony a lot. One reason is that, because there are no guidelines, only factors to consider, alimony is one of the more difficult issues to resolve. How many years should it be for? When is it permanent? What does permanent really mean? Is there a rule that you…
In August 2011, I posted an article on this blog entitled "Appellate Court Rejects ‘Rule of Thumb’ Formula to Calculate Alimony – Sort Of." In that article, I noted that there was a dirty little secret used by judges and lawyers in New Jersey to come up with a "ball park" as to what alimony should be. This "rule of thumb" does not take into account all of the statutory factors. Rather, the formula simply subtracts the lower income (real or imputed) from the and multiplies the difference by a percentage. I have been told that that percentage is 30% or one-third in the northern part of the state and 25% in the southern part.
More importantly, I noted that judges really cannot use this formula and must make findings considering the law and all of the statutory factors. This post was as a result of a case where the judge seemingly used the formula to determine alimony. The Appellate Division remanded the matter to the trial court to determine alimony using the alimony factors.
So much to my surprise, a new case came out yesterday emanating from a legal malpractice case filed by a litigant against her divorce attorney. Lo and behold, the Appellate Division notes that using this "rule of thumb is an appropriate way to calculate alimony.
Sandra C. Fava is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild’s Family Law Practice Group in the Roseland, New Jersey office. Sandra exclusively practices family law throughout New Jersey. She is a former law clerk in the Morris County Superior Court, Family Part and has experience in all areas of family law and family law litigation. You can reach Sandra at (973) 994-7564, or email@example.com.…
Does it matter if a party’s income increases between the cut off date (usually the date of Complaint) and the time of the divorce? What about the argument that this income does not reflect the marital lifestyle so it should be ignored? These questions were answered by Ocean County Family Part Judge Lawrence Jones, who, in his brief time on the bench, has become a prolific writer contributing a number of reported decisions.
Judge Jones addressed these issues in the reported case of Dudas v. Dudas released on November 1, 2011. While trial court opinions do not have to be followed by other trial courts or the Appellate Division, Judge Jones’ analysis of the issue was interesting.
In this case, the wife was primarily a stay at home parent. During the marriage, the husband’s income grew to the mid-$40,000 range, with a one year high of $59,000 by the end of the marriage. After the Complaint, the husband’s "… W-2 income … sharply jumped to a personal high of $64,000 in 2009, and then ballooned again to $76,000 in 2010. In 2011, defendant is on pace to earn $68,000."
Not surprisingly, the wife sought alimony based upon this higher income. The husband argued, "… that his post-complaint earnings are irrelevant because, (a) alimony should be based upon the parties’ marital standard of living, and (b) that standard of living was never based on the heightened level of earnings he presently enjoys." Judge Jones disagreed with the husband.
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.