Monday, July 20, 2009

The Basis for Alimony

A common topic which arises during divorce mediation sessions and divorce support group meetings is the nature of alimony. Those individuals which are likely to be the payer don’t feel they deserve the obligation of continued support to the ex-spouse after the marriage ceases, while those individuals who are dependent upon the economically advantaged ex-spouse are adamant in demands for continued support. What I find is that there is a basic misunderstanding as to what is alimony, the different types ascribed by the court and why alimony is awarded. This article will attempt to shed light upon this impassioned topic.

The first step in understanding the concept of alimony is to realize that the New Jersey court system views marriage as a contract and an important social institution. Rather than cite multiple court decisions as would normally be done when writing a brief or other legal document, I will explain the basis for alimony as it developed in New Jersey jurisprudence for the individual who must pay or seeks to receive alimony.

Historically, the NJ court has viewed marriage as a contract which in its basic form is an agreement to bargain for something at a specific price and an acceptance to provide that something at the agreed upon price. In the case of marriage, societal norms developed prior to the right of women to own real property (land). Back at that time, the soon to be wife’s family offered a dowry to the man who would marry her. In consideration of this dowry, the man was expected to support his future wife. During earlier times, marriage was a form of survival as it took at least two people to normally maintain a homestead. The man offered (a term of contract law) or promised to love and keep (support) his wife in consideration for her bearing her husband’s offspring and support his endeavors. Marriage was considered a permanent enterprise when the average lifespan was much shorter than today’s longevity. In addition, in the past society frowned upon the remedy of divorce.

However, life spans increased, women gained the right of land ownership and began to make small but meaningful economic inroads. Then, during the 1940s, women took the men’s place in the factories as men were sent off fighting the Second Great War. During the Eisenhower years, the nuclear family took on new meaning while at the same time; the national highway system expanded the ability of the population to easily transplant itself across state lines. The country became more forward looking and greater expectations of what life offered gained acceptance. During the social revolution of the 1960s, women gained greater equality and the concept of divorce became more acceptable to the nation. No longer were women forced to remain in loveless or violent marriages. As divorces become more common place, the NJ court struggled with the notion of the promises of marriage and support.

Alimony arose as a concept of equity and fairness, if a married woman was deserted by her husband, society demanded that he continued to support her until she was able to support herself or another man voluntarily accepted to take on through remarriage the obligation to support her. Today, the NJ court does not consider who left the marriage as a basis for granting or denying alimony, but rather undertakes a review of the particular case facts and the thirteen statutory factors as enumerated in N.J.S.A. 2A:34-23(b). Thereupon, a finding that one spouse has an economic advantage over the other; the NJ court can award alimony to the dependent spouse. The 13 statutory factors that the NJ court must apply to each case are:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established during the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, education 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 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, direct or indirect, 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.

Implicit in the vow of matrimony or contract of marriage is conformity to state law. As New Jersey residents, a married couple who decides to divorce will be subject to the alimony statute, as well as prior case law. In reviewing the particular divorce case, the NJ court would conduct an analysis of the divorcing couple’s finances, standard of living and other statutory considerations. If the NJ court found that there was cause to award alimony, the next phase of analysis would be to determine what type of alimony. In New Jersey, there are four types of alimony that the court can award. They are permanent, limited duration, rehabilitative and reimbursement alimony.

Permanent alimony is awarded by the NJ court only after careful analysis of the statute’s 13 factors. Generally, permanent alimony is awarded when the marriage has been of a sufficiently long duration and the dependent spouse can’t support herself. However, there is no defined numerical threshold which defines the long term marriage. The NJ court has in cases awarded permanent alimony in marriages over ten years, yet in other cases, opined that marriages of twelve years were of intermediate length. The awarding of permanent alimony is very fact case sensitive. The spouse seeking permanent alimony has the burden to prove that such an award is warranted. The length of the marriage is only one consideration. Other factors such as the dependent spouse’s age, health, education and employability is also weighed in the determination. As an example, a 54 year old, dependent spouse who was a homemaker, raised the children during the marriage and has few employment options will likely meet the burden with ease.

Once the NJ court determines that permanent alimony is warranted, the next part of the analysis is what the fair amount of the alimony obligation should be. Again, the NJ court has not articulated a precise formula. Rather, the court reviews each case for the earnings and other income available to each spouse. Income derived from investments such as stock dividends, real property rental income, as well as bonuses and regular overtime pay can be included for calculation purposes. If a spouse is not earning at the level he is capable of, the court may impute income to that spouse. Permanent alimony normally ceases when either of the spouses’ dies or when the dependent spouse remarries. The NJ court may also at some future time review the matter if the fortunes of the parties increase or decrease dramatically, the dependent spouse’s cohabitation with another of the opposite sex or other such event which purports a changed circumstance.

Limited duration alimony is awarded in those instances when the marriage’s length and other statutory considerations don’t justify permanent alimony. Limited duration alimony is payment to the dependant spouse for a specific length of time, but less than a lifetime. Again, there isn’t any basic formula listed in the statutes or rules. Each individual case is reviewed by the NJ court and a length of time and amount is fixed. In determining the limited duration alimony’s time length the NJ court would consider the time the dependant spouse would need to improve her financial situation and earning capability.

Rehabilitative alimony is generally awarded when the dependant spouse will re-enter the workforce at some future date after she has been retrained so as to support herself. An example of a case where rehabilitative alimony is awarded is when a dependant spouse will go back to school to receive a degree which in turn makes her more employable at a higher rated position than if she didn’t have the degree. Under the statute, N.J.S.A. 2A:34-23(d), the dependant spouse would have to show the NJ court the various steps and time limit needed to achieve the objective of rehabilitation. This form of alimony differs from limited duration alimony in that rehabilitation seeks to attain the dependant spouse’s self sufficiency. However, it must be noted that the NJ court can and has awarded rehabilitative alimony together with permanent alimony in many cases. At first, it may appear that there is a contradiction in the logic of awarding rehabilitative alimony to make the dependant spouse self sufficient and also award permanent alimony. But in those divorce cases where the rehabilitative alimony increases the employability of the dependant spouse but still fails to allow for self sufficiently, a small sum of permanent alimony would be acceptable.

The final type of alimony in which the NJ court can award is reimbursement alimony. This type of alimony is awarded to the supporting spouse for her contribution towards the other spouse’s professional training. A supporting spouse who assisted in the household expenses and or contributed to the other spouse’s academic costs can be entitled to get repaid for the amounts she contributed. However, being reimbursed does not preclude her from being awarded additional alimony such as permanent or limited duration alimony.

Couples who are contemplating divorce and will likely have an alimony claim before the NJ court may consider leaving their economic future to a judge to be extremely frightening. The better approach would be divorce mediation with a highly skilled divorce mediator such as Nicholas De Metro of Montclair Divorce Mediation, who will closely work with the divorcing couple to achieve a fair and reasonable agreement. A settlement of their alimony issue which takes each individual’s immediate and long term concerns into consideration and allows both of them to move forward knowing that they kept control of their future.


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