by John S. Eory, Esq.
After much debate, compromise, and politicking, New Jersey enacted a new alimony law on September 10, 2014. This article, which is the first in a two-part series, provides an explanation of the new law concerning how alimony awards are determined and when they are subject to modification or termination.
The term “permanent alimony” has been replaced by the syntax-challenged term “open durational alimony.” Open durational alimony means that there is no prescribed end-date for the payments, while “durational alimony” contains a specific termination date. The law states that in most cases a minimum of 20 years of marriage, calculated from the date of marriage to the date of the divorce complaint, is necessary to warrant an award of open durational alimony. For marriages of less than 20 years, the Court cannot award alimony longer than the duration of the marriage except in the case of “exceptional circumstances.”
For example, in a seven-year marriage, the maximum length of alimony cannot be greater than seven years (but could be less) or, if greater than seven years, must be based on exceptional circumstances including factors like the ages and health of the parties, the effect of the marriage and divorce on the parties’ current financial circumstances, and the impact of equitable distribution (the division of marital assets). The existence of exceptional circumstances must be determined on a case-by-case basis and the court must make specific findings in such regard.
Another issue involves the amount of an alimony award. By way of background, some alimony reformers strongly argued for a formula to determine the amount of alimony based on the parties’ actual or imputed incomes. Ultimately, the new law avoids any such formula and relies upon the 14 factors contained in the previous law including the need and ability to pay, the history of financial and non-financial contributions to the marriage, the parties’ earning capacities, the impact of absences from the job market, the need for additional education or training, parental responsibilities, the existence of other income sources, tax consequences, and any other factor(s) the Court deems relevant.
The new law further states that courts must consider any temporary alimony being paid and both parties are equally entitled to maintain the marital standard of living. A court must base its decision on the enumerated factors, and if any factor is treated more importantly than another it must provide written findings of fact and conclusions of law explaining its rationale.
The new law became effective immediately rather than retroactively, as sought by some reformers. This is a legally sound result based on constitutional problems that would have attended any retroactive application. While both sides can claim victory, radical alimony reformers are likely to pursue further efforts to amend the new law. It is this author’s opinion that such efforts will prove non-productive.
My next article will deal with the how the new law addresses an alimony obligor’s retirement, unemployment, or loss of income, as well as the impact of cohabitation by an alimony recipient with a new partner.
John Eory is the Co-Chair of Stark & Stark’s Divorce Group in the Lawrenceville, New Jersey office. For questions, please contact Mr. Eory: firstname.lastname@example.org.