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."


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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 sfava@foxrothschild.com.
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A divorce action generally results in a Final Judgment of Divorce which dissolves the bonds  of matrimony – including the part about "in good times and bad . . . "  This however, is not always the case.  Certainly if two people have children together their relationship with each other, although different, will have to continue if they are to co-parent.  But what about a long term marriage at the end of which a Judge orders permanent alimony?  Through permanent alimony the financial relationship of two individuals live on "in good times and bad."

In a recent appellate division case, Knips v. Knips, the Court reversed the trial Court’s determination regarding alimony where, after thirty-four years of marriage and an award of $175 per week in permanent alimony, the plaintiff could not afford to lead a "legitimate middle-class" lifestyle.  As the Court in Knips states, "alimony is intended to allow the dependent spouse to live at the marital standard of living, not just ‘bare survival’" [emphasis added].  The idea is that If the parties enjoyed a middle-class lifestyle during the marriage, then the parties should be able to enjoy a similar lifestyle after the marriage.  If one party was mainly responsible for financially supporting that lifestyle, then a Court will likely order that they continue to be financially responsible (in the form of alimony payments).  And, if among other factors, the marriage was long enough then then Court will order that this financial responsibility be permanent (i.e. permanent alimony). 


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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.


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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. 


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In an interesting unreported decision released on August 3, 2009 entitled Mathias v. Mathias, a wife was granted both permanent and rehabilitation alimony after a 15 year marriage. 

In this case, the husband was a state trooper.  The wife had cared for the children, by agreement, though she had worked on and off as a cosmetologist.  She was attending college seeking to be a registered nurse at the time of trial.

The trial judge imputed two income figures to the wife.  One as to what she was earning at the time and what she could earn in the future as a nurse.  The matter was reversed and remanded for further consideration as to both.  For the current income, there was a finding that the wife was underemployed yet the Court used her current income.  For the future, the statistics from the department of labor as to what a registered nurse could earn were used. 


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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

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

Many times a Property Settlement Agreement or Judgment of Divorce will address the payment of alimony.  An alimony calculation, among other factors, is calculated upon the length of the marriage, the income of the parties, the assets each will receive by way of the divorce, the age and health of the parties, and the age of children, if any, etc.  The standard in New Jersey for a divorcing spouse is the ability to maintain the ‘marital standard of living’ or as close thereto as may be economically possible.

So, does permanent alimony really mean forever? The answer depends on the language in an Agreement or Judgment of Divorce.  There is case law in New Jersey stating that cohabitation may be a cause to terminate alimony.  However, cohabitation alone is insufficient unless the Agreement states otherwise.  There also needs to be some financial benefit or economic intermingling.

Recently, the Appellate Division issued an unpublished decision in the matter of Adessa v. Adessa, A-2854-07T2, decided May 29, 2009, wherein husband filed a motion seeking to terminate his alimony obligation based upon his former wife’s cohabitation or alternatively, requesting a hearing and discovery to determine if there was an economic benefit being received by former wife as a result of her relationship.


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This was a good and bad week for Martin Brodeur, the goalie for the New Jersey Devils.  On a good note, he passed Patrick Roy as the all time winningest goalie in NHL history.  On a bad note, he lost his appeal of an alimony award in the Appellate Division.  To see the opinion, click here. This is the second appeal in this case.  To see the opinion in the first appeal, click here.

This was a 7 1/2 year marriage from the date of marriage until the date of separation.  It was clear that it is was the parties’ intention that the wife would be a full time, stay at home caretaker of the children.

In the first appeal of this case, the Appellate Division affirmed the award of alimony to Melanie Brodeur in the amount of $500,000 per year but reversed the award of permanent alimony.  In this case, the Appellate Division affirmed the award of limited duration alimony until the youngest child graduated from high school.

In the first appeal, the Appellate Division held that:

limited duration alimony is particularly suitable for a situation such as here when the marriage was of short to intermediate duration and the woman is young and has young children. The judge is able to fashion an award that provides financial support to the former wife while she cares for the children.

The Court then addressed the factors that should  be considered in the decision of the length of the term, as follows:

The term should be informed not only by the age of the children, but also by the parties’ decision that plaintiff should be the primary and full-time caretaker of the children.


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