limited duration alimony

When laws get changed, the preamble to the statute and/or the legistlative history often tells you the perceived need for the change.  As an example, when the palimony law, which we have blogged on numerous times before, changed a few years ago, the preamble of the amendment to the statute mentioned several palimony cases that the law sought to overturn.  We have also blogged on the possible alimony reform movement.  If the reform now passes, I would not be surprised if it is response to Gnall v. Gnall, a published (precedential) Appellate Division opinion decided on August 8, 2013.

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Gnall is interesting for a lot of reasons and we will blog about some of the other reasons later on.  That said, the greatest significance of Gnall is that some will now argue that the new black letter law is that a 15 year marriage automatically requires permanent alimony.  I am not sure that it actually means that but the fact is that many people will be advancing that proposition.

In this case, the parties were married for 15 years (obviously) and had 3 children.  The parties were about 41 at the date of Complaint and both 42 at the time of trial.  The wife worked outside of the home for the first 6 or so years of the marriage, earning more than $100,000, and then “principally cared [sic]” for the children for the remainder of the marriage.  The husband’s income grew from about $500,000 to about $1 million at the date of Complaint to about $1.8 million in the year of the trial to over $2 million thereafter.

As noted by the Appellate Division, when analyzing the statutory factors. the trial judge found:

.. the parties’ fifteen-year marital relationship was “not short term[.]” Nevertheless, when he weighed the “relatively young” age of the parties, and their good health and education, which allowed them to obtain employment “at good salaries” and thereby support “excellent lifestyles for themselves and their children[,]” the judge concluded “the parties were not married long enough and  are not old enough for [defendant] to be responsible to maintain that lifestyle permanently for [plaintiff].” He therefore concluded, “this is not a permanent alimony case.”  (Emphasis added).

The Appellate Division disagreed and reversed.  The analysis given reiterated the purpose of alimony:

We nevertheless emphasize that judges considering an alimony request must always keep in mind the primary “purpose of awarding alimony to a spouse is based on ‘an economic right that arises out of the marital relationship and provides the dependent spouse with a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.'” Clark v. Clark, 429 N.J. Super. 61, 72-73 (App. Div. 2012) (quoting Mani v. Mani, 183 N.J. 70, 80 (2005) (internal quotation marks and citations omitted)). The economic dependence created as a result of the marital relationship is a crucial finding necessary to impose the ongoing financial entanglement of an alimony award. The law attributes a party’s individual success to have been achieved by virtue of the joint union — “a shared enterprise, a joint undertaking, that in many ways . . . is akin to a partnership.” (some citiation omitted)

The Court then turned to the basis for why limited duration alimony was added to the alimony stated about 15 ago, noting that it was “… a remedy was to address a dependent spouse’s post-divorce needs following “‘”shorter-term marriages where permanent or rehabilitative alimony would be inappropriate or inapplicable but where, nonetheless, economic assistance for a limited period of time would be just.” (Emphasis added).

Now, the analysis turned to whether the Gnall’s marriage, 3 months shy of 15 years, qualified for permanent alimony.  The Court noted:

Assessing the facts here, the trial judge correctly identified this marriage’s length as “not short-term.” He further acknowledged plaintiff would be unable “to maintain the marital lifestyle without alimony now and probably not for some time[.]” Nevertheless, he concluded, consideration of an award of permanent alimony was obviated by the parties’ relatively young ages and the fact that they were not married long enough — commenting theirs was not a twenty-five to thirty-year relationship. This conclusion was error and must be reversed.

What?  Did the Appellate Division just disregard or devalue the ages of the parties as a factor or imply that that when the parties’ ages are in equipoise with duration of the marriage, we defer to duration?  But as said earlier, did the court mean to draw a line in the sand or a bright line rule?  Maybe not, as they then said:

We do not intend to draw specific lines delineating “short-term” and “long-term” marriages in an effort to define those cases warranting only limited duration rather than permanent alimony. We also underscore it is not merely the years from the wedding to the parties’ separation or commencement of divorce that dictates the applicability or inapplicability of permanent alimony. Nevertheless, we do not hesitate to declare a fifteen-year marriage is not short-term, a conclusion which precludes consideration of an award of limited duration alimony.

A dependent spouse’s age alone also cannot obviate permanent alimony….

Aha.  So the court does not intend to draw absolute bright lines but 15 years seems like it might be one.  What about 14 years, 13 years, 12 years.  The Hughes v. Hughes case decided before the limited duration alimony statute said that a 10 year marriage was long-term. What does that mean now, when read with Gnall?

What does this mean in this case?  If neither party dies and plaintiff does not remarry, the alimony in this case can go on for almost twice the length of the marriage (assuming Mr. Gnall some day gets to retire and stop paying – not assured under the current law – and given his income, he may very well be able to continue paying long after his retirement if his success continues).  Does this preclude Ms. Grall from seeking a new spouse for fear of loosing permanent alimony?  As noted above, it would seem to me that this case is the type of case that may give fuel to the raging alimony reform debate so stay tuned on that front too.

There are other issues of interest in Gnall including those relating to imputation, lifestyle, and others that I will blog on in the coming days.


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 and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

There has been an alimony reform movement that has been gaining traction throughout the country.  Some of the major concerns appear to be this issue of permanent alimony and the lack of uniformity in alimony awards, both in amount and duration, from case to case.  In the recent past, alimony laws have been reformed in Florida, Massachusetts and Maryland.  Is New Jersey next?

On March 7, 2013, A3909 was introduced in the New Jersey Assembly, which, if passed, would radically change alimony as we know it in New Jersey. 

The following are a highlight of the changes:

  • All references to permanent alimony are deleted from the statute, though, as noted below, for marriages of more than 20 years, an indefinite award of alimony can be be granted


  • The concept of imputing income to someone that is unemployed or underemployed, which already exists in the case law and child support guidelines, would be codified



  • The amount of limited duration alimony should not exceed the recipient’s need or 30 to 35 percent in the difference between the parties gross incomes at the time of the initial award, though a court would have the discretion to deviate.  Some reasons for deviation would be advanced age, chronic illness, unusual health circumstances, whether the payer is providing or ordered to provide health insurance to the recipient, sources and amounts of unearned income not allocated in equitable distribution, the recipient’s inability to become self-supporting based upon the abuse of the payer, and others, including a catch all "any other factors that a court deems relevant and material."


Continue Reading Is Alimony Reform On Its Way in New Jersey

As a continuation to my alimony-themed posts, the particular issue that is the subject of this blog post may come as a surprise to some supporting spouses; namely, the fact that the term and amount of a limited duration alimony obligation can be lengthened in some rare circumstances.

New Jersey Courts do have authority to modify the amount and term limited duration alimony. In the case of modifications of limited duration alimony, the alimony statute, N.J.S.A. 2A:34-23(c), provides as follows:

An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.

Rothfeld v. Rothfeld (App. Div. 2008), while unpublished, is just one example of this portion of the statute in action. In Rothfeld, the parties divorced after an approximately seven (7) year marriage. They had two (2) children: Jonathan, who was born on September 19, 1996; and Martin, who was born on September 15, 1998. Both parties were members of the New Jersey Bar and the husband had an active private practice. The wife had not returned to active practice, however, as a result of her parenting obligations with respect to the children, particularly Jonathan, which had prevented her from doing so.

In reaching their divorce settlement, the parties agreed upon “limited duration alimony” in the amount of $500 per week for four years, effective April 1, 2003. According to the wife, at the time the PSA was negotiated, “it was assumed that [she] would be able to obtain per diem work in the law field.”

Continue Reading The Term and Amount of Limited Duration Alimony Can Really be Modified? …Really?

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 get one year of alimony for each year of the marriage or you get alimony for half of the length of the marriage?  Is there a rule of thumb (formula)?  In fact, we have recently blogged twice on that issue alone.  In one post, wenoted that the Appellate Division noted unequivocally that a court could not use a formula. In another, we noted that the "rule of thumb" can be used by an expert in a legal malpractice case regarding a divorce to determine if the attorney may have committed malpractice

An unreported (non-precedential) Appellate Division decision released on January 12, 2012 in the case of Newman v. Newman touched on a few of the above issues.  While not boring you with all of the details, the following are the relevant facts.  The marriage was just under 13 years in length and the husband was 51 and the wife 40 at the time of the divorce. There were two children of the marriage.  The Court imputed $122,300 to the husband and $45,000 to the wife for support purposes.  The husband’s actual income was approximately $88,000 but he was provided free housing as an in-kind benefit which accounted for the difference between his cash income and the amount used for support.  The court awarded $27,000 per year in alimony.

Fun facts of this case: (1) the court awarded 10 years of alimony in a marriage of just under 13 years – a result that the Appellate Division deemed "reasonable"; (2) though budgets and factors were analyzed, when you do the math, the alimony was just under 35% of the difference – curiously close to what the so called "rule of thumb" would result in; (3) the court actually quantified an in-kind benefit – this is hardly done often enough though the Child Support Guidelines would seem to require it; (4) the trial judge deemed this 12 1/2 marriage to be "fairly long term"; (5) the husband’s counsel fees alone were more than $100,000 yet he appealed a $5,000 award to the wife’s attorneys.

Clearly, alimony cases are fact sensitive and, if tried, the result could vary from judge to judge.


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


Many marital settlement agreements provide that a payee spouse shall receive what is legally classified as "limited duration alimony" from the other spouse.  While not "permanent", alimony of a limited duration is designed for a situation where the payee spouse contributed to a generally short-term marriage where the marriage itself displayed indicia of a marital partnership, and the payee spouse has skills and education enabling him or her to return to the workforce.  LDA is oftentimes distinguished from other forms of alimony known as "reimbursement alimony" and "rehabilitative alimony," which are more tailored to facilitating the payee spouse’s ability to earn or to make that spouse whole for sacrifices made during the marriage. 

The question then becomes, for the purpose of this blog entry, can LDA be extended, especially where the term was agreed to in a settlement agreement.  N.J.S.A. 2A:34-23(c) allows for modification of the amount of LDA, but it also prohibits modification of the term of payment except in the case of the broadly termed "unusual circumstances." The Appellate Division recently took up this issue in the unpublished (not precedential) decision of Rothfeld v. Rothfeld.  There, the parties entered into a settlement agreement providing the Wife with four years of LDA, at $500 per week.  Also contained in the settlement agreement was the Wife’s representation that she would be able to continue the standard of living that she enjoyed during the marriage because, in addition to her alimony payments and assets received via equitable distribution, she was able to earn income.

Continue Reading Extending Limited Duration Alimony – Strong Proofs Required

When parties resolve their divorce via a settlement agreement, can they agree that neither party will seek to modify the agreed upon terms of alimony and child support?  In New Jersey, a court may generally modify a support obligation at any point in time to achieve equity inherent in this State’s alimony law.  For instance, as detailed countless times on this blog, a party must establish that they have experienced a substantial and continuing change in circumstances under the seminal case of Lepis v. Lepis, 83 N.J. 139 (1980), in order to merit some form of support modification. 

An "anti"-Lepis clause, however, attempts to limit the court’s ability to modify via a waiver by the parties to seek such modification.  To be enforceable, the clause must fulfill several conditions.  First, the parties must include such language in the settlement agreement "with full knowledge of all present and reasonably foreseeable future circumstances," and second, "must bargain for a fixed payment or establish the criteria for payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement."

However, consistent with my assertion above that such clauses are enforceable – until they are not enforceable – the overriding legal principle in New Jersey is that "If circumstances have made the parties’ standards unreasonable, they can in extreme cases be modified.  In less extreme cases . . . the payments can be accrued with enforcement conditioned upon the payment of reasonable periodic payments."


I tell virtually every client I work with that the Case Information Statement which must be completed by anyone going through the formal divorce process in NJ is one of the most important documents to be completed – arguably, the most important document.

The recent unpublished decision of Raesky v. Brody, A-6148-08T1, decided May 26, 2010, reinforces my mantra.  When completing a Case Information Statement it is important to be honest (it’s a document signed under oath with the risk of penalty for perjury), realistic, and thorough.  The budget, assets and liabilities listed on this document will assist a judge in determining the issues of spousal support and the division of assets.  These statements are the maps which judges follow to lead them to a final determination of these issues.

By over inflating  your budget, you give the other side the ability to poke holes at your credibility.  Sometimes the thinking that the higher my budget the more money I can get may backfire, as it appears to have done for Ms. Brody.  Also, in the case where the budget is artificially low, the payor spouse’s credibility will be questioned.  If it is the payee spouse with an inaccurately low budget, they run the risk of receiving inadequate support and thus they’re unable to meet their needs let alone maintain even a semblance of the marital standard of living.


A common misconception in New Jersey is that both spouses can use the same attorney for their divorce.  My local paper recently had an article about divorces in the current economy.  One attorney was quoted as intimating that this was true; the attorney was speaking of uncontested divorces in which the parties agree on issues and the seek the dissolution of their marriage. While I am certain that the attorney’s comments were taken out of context, as one of the points in the article was a concern about legal fees, this is a question that comes to me often.  A client will ask me if I can represent both spouses, even if they have an agreement.  The answer is a resounding, no.


The ethics rules in our state are very clear that one attorney cannot represent both spouses in a divorce.   Simply, it is a conflict of interest.  The New Jersey Supreme Court has said on many occasions, that “one of the most basic responsibilities incumbent on a lawyer is the duty of loyalty to his or her clients. From that duty issues the prohibition against representing clients with conflicting interests."( In re Opinion No. 653 of the Advisory Comm. on Prof’l Ethics, 132 N.J. 124, 129 (1993)).  Our state has a very strong policy in which there should not be even an “appearance” of a possible conflict of interest.  This is to protect the clients.


Imagine a scenario in which one spouse has been home raising children, and the other has been working throughout a twenty year marriage.  This is a situation in which alimony will be an issue.  Certainly, the non working spouse and the working spouse may have differing positions about the amount and term of alimony. Most people agree that in these circumstances, the parties will want to have their own attorneys.  But what about the situations where both parties are working, and they have a house and a couple of retirement accounts.  Many people believe that in this situation, they do not need two attorneys and both use the same lawyer.  Well, they can’t. 

Continue Reading One Client, One Lawyer

In an interesting unreported decision released yesterday in the case of Christopher v. Christopher, the Appellate Division reversed a trial court opinion granting the wife permanent alimony. 

The parties were married 2006 and the Complaint for Divorce was filed in December 2004.  Interestingly, the trial court found and the Appellate Division affirmed the tacking of the period of premarital cohabitation to the length of the marriage.  Thus, the 8 year marriage became a 9 year marriage. 

Even still, the Appellate Division found that the relationship was simply too short to award permanent alimony.  Rather, citing the reported Cox decision, the Appellate Division again noted:

limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

The Appellate Division in Christopher deemed this to be a marriage of short duration.  Moreover, despite finding that the husband (a medical doctor) will probably earn more in the future and the wife (a personal trainer) will probably not earn enough to maintain the marital lifestyle in the foreseeable future, those facts alone don’t justify permanent alimony in a marriage of short duration.

While not precedential, this case is instructive because it is not unlike many cases that we see and that come before the Courts.


For about a decade, Limited Duration Alimony (LDA) has been an available form of alimony in New Jersey.  The questions often asked regarding LDA is, when should it be awarded and, relatedly, for how much and how long? 

These questions were recently addressed in the unpublished Appellate Division opinion of Elliott v. Prisock-Elliot, decided on June 2, 2009.  Generally, where one spouse is economically dependent upon the other at the end of a marriage, an alimony award helps the dependent spouse achieve a lifestyle "reasonably comparable" to that enjoyed during the marriage.  Several factors are included in a Court’s alimony determination under N.J.S.A. 2A:34-23, including, but not limited to the dependent’s spouse’s needs and ability to fulfill them, and the other spouse’s ability to contribute.

LDA, though, is specifically intended to address a dependent spouse’s economic need for support where the marriage reflected a true partnership, but the marriage itself was too short in duration for a permanent alimony award, and the dependent spouse needs neither education nor job training to return to the workforce that would potentially merit a rehabilitative alimony award.  LDA essentially aids the dependent spouse who has the education/job skills to have a career, but devoted efforts instead to the marriage and allowed the other spouse to increase their own earning capacity at the same time. 

The Appellate Division found that the trial judge in Elliott failed to adequately consider the alimony factors and the purpose of LDA in granting its award of 10 years of LDA at $30,000 per year on a marriage of less than 10 years at the time the complaint for divorce was filed and approximately 12 years when the dual judgment of divorce was entered.  Specifically, the Appellate Division noted the trial court’s error as to the length of the marriage; its complete lack of findings as to each spouse’s marital contributions other than that each had worked on their own to care for the children; and its insufficient assessment of the dependent spouse’s need for alimony and the other spouse’s ability to pay.  The trial court’s decision on alimony was reversed as a result.

While LDA should not be awarded as a substitute for permanent alimony when a permanent award is appropriate, a proper LDA determination requires a careful look at each fact-specific case and how those facts mesh with the statutory alimony factors in New Jersey, as well as a consideration of LDA’s overall purpose in aiding a dependent spouse in need.  Also, while the amount of an LDA may be modified, N.J.S.A. 2A:34-23(c) prohibits modification of the length of the LDA term except in the case of the broadly termed "unusual circumstances."