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.
We have previously blogged on the issues of counsel fee awards and a trial court’s decision to grant or deny a party’s request for oral argument on a pending motion. Two of these prior postings can be found here and here. Both of these issues framed the Appellate Division’s recent unpublished opinion in Bove v. Bove, found here.
The parties at issue were divorced on June 28, 2001 and three children were born of the marriage (two adult sons and a 16-year old daughter). A supplemental Judgment of Divorce established that the Wife would have sole physical custody and the parties would share joint legal custody. Additionally, the Husband was required to create trust funds for the children’s college expenses and to be responsible for 80% of the daughter’s college tuition.
The Wife sought to enroll the daughter in a private high school, informing the Husband that she could not pay for any part of private school tuition, that she was taking the daughter to open houses and that she asked for the Husband’s "thoughts on the matter." The Husband responded in a letter that he would not contribute to tuition prior to college and was displeased that the issue was broached with their daughter before him. Nevertheless the Wife moved forward with the process and, when the Husband sought to have the Wife confirm in writing that she would not seek contribution from him for high school tuition, she refused. The Wife also contended that the Husband was using the college trust funds for non-college expenses, as defined by the supplemental JOD, and the Husband contended that the Wife ignored, and then hedged, on his timely requests for vacation with the children. …