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Calculating a Term of New Jersey Alimony in a New Jersey Divorce

Nov 13, 2016 @ 05:00 PM — by Michael Green

CALCULATING THE TERM OF NEW JERSEY ALIMONY IN A NEW JERSEY DIVORCE

If you need help calculating the term of alimony in your New Jersey divorce case, call us at Green & Associates, at 732-390-0480 or 201-242-1119 for a free consultation in our East Brunswick divorce or Fort Lee divorce offices with our experienced New Jersey divorce lawyer.  Night and weekend appointments are available.

Image result for alimony On September 10, 2014, New Jersey’s alimony statute, N.J.S.A.2A:34-23, was amended and it specifically addressed how calculations of how much alimony and the term of alimony were to be determined with divorces in New Jersey going forward. 

Most recently, the New Jersey Supreme Court reviewed the New Jersey alimony statute as to determining the amount of of alimony to be paid.  When determining the amount of an award, the Court stated that a court must evaluate the actual needs of the dependent party and the actual means of the other party.  The Court stated that New Jersey public policy is that no two marriages are the same and that all 13 statutory factors are to be considered and weighed against the relevant facts. 

Image result for alimony As to the length of the term of alimony, the Court reiterated, pursuant to the amended Statute, that in marriages lasting fewer than 20 years, the length of payments cannot exceed the length of the marriage, unless a judge decides there are "exceptional circumstances." The change in the statute generally applies only to divorces filed after the new law was signed. 

Image result for alimony Importantly, the amended Statute eliminated “permanent alimony” and replaced it with “open durational alimony” and it now states that “neither party has a greater entitlement to that standard of living (during the marriage) than the other.”  In addition, “the nature, amount, and length of pendente lite support paid (pending the divorce)” is a factor to be considered as to the term of alimony awarded.  Courts are also now to consider “the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living established in the marriage or civil union…”.  Finally, “alimony may be modified or terminated upon the prospective or actual retirement of the obligor.”  And, “there is a rebuttable presumption that alimony shall terminate upon the obligor attaining full age of retirement age…”  that is “reasonable and made in good faith.”

“Full retirement age shall mean, the age at which a person is eligible to receive full retirement for full retirement benefits under section 216 of the federal Social Security Act (42 U.S.C. sec.416).  If you were born after 1960, that age is generally 67 years of age.

See related link:  https://www.ssa.gov/planners/retire/1960.html

The New Jersey’s alimony statute, N.J.S.A.2A:34-23, states as to determining the term or length of alimony, the following:

                “b. In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony:

  • open durational alimony;
  • rehabilitative alimony;
  • limited duration alimony
  • reimbursement alimony to either party.

In so doing the court shall consider, but not be limited to, the following factors:

  • (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, with neither party having a greater 9 entitlement to that standard of living than the other;
  • (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;
  • (13) The nature, amount, and length of pendente lite support paid, if any; and
  • (14) Any other factors which the court may deem relevant.

In each case where the court is asked to make an award of  alimony, the court shall consider and assess evidence with respect  to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard. When a share of a retirement benefit is treated as an asset for  purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.

c. In any case in which there is a request for an award of alimony, the court shall consider and make specific findings on the evidence about all of the statutory factors set forth in subsection b. of this section.

For any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union. Determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of the statutory factors  set forth in subsection b. of this section. In addition to those factors, the court shall also consider the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living  established in the marriage or civil union, to which both parties are  entitled, with neither party having a greater entitlement thereto.

Exceptional circumstances which may require an adjustment to the duration of alimony include:

  • (1)The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;
  • (2) The degree and duration of the dependency of one party on the other party during the marriage or civil union;
  • (3) Whether a spouse or partner has a chronic illness or unusual health circumstance;
  • (4) Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;
  • (5) Whether a spouse or partner has received a disproportionate share of equitable distribution;
  • (6) The impact of the marriage or civil union on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;
  • (7) Tax considerations of either party;
  • (8) Any other factors or circumstances that the court deems equitable, relevant and material.

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. In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.  

d. Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur. An award of rehabilitative alimony 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 rehabilitative award. This section is not intended to preclude a court from modifying alimony awards based upon the law.

e. Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. An award of reimbursement alimony shall not be modified for any reason.

f. Except as provided in subsection i., nothing in this section shall be construed to limit the court's authority to award open durational alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties  and the nature of the case.  

g. In all actions for divorce or dissolution other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just. In all actions for divorce, dissolution of civil union, divorce from bed and board, or legal separation from a partner in a civil union couple where judgment is granted on the ground of institutionalization for mental illness the court may consider the possible burden upon the taxpayers of the State as well as the ability of the party to pay in determining an amount of maintenance to be awarded.”

Image result for alimony

NEW JERSEY OPEN DURATIONAL ALIMONY

So, under the new statute, generally “open durational alimony” may be awarded in those marriages twenty (20) years or longer.  Upon a “good faith retirement” by the obligor, open durational alimony may be terminated.

NEW JERSEY LIMITED DURATION ALIMONY

Under the new statute, marriages less than twenty (20) years generally may award “limited duration alimony”, or, alimony for a specific period of time.  The term of this LD alimony may not exceed the term of the marriage.  With unusual circumstances, the term of this LD alimony may be modified.

NEW JERSEY REHABILITATIVE ALIMONY

Generally, to provide support for a party that is going to college or other training or educational program for employment.  This alimony may be for a shorter term than the LD alimony awarded in consideration of the retraining being undertaken by that obligee.

NEW JERSEY REIMBURSEMENT ALIMONY

Generally, awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education e.g. graduate school for the obligor such as medical school, law school, MBA, PhD.

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Whatever your question about alimony, call us at Green & Associates to help you today at 732-390-0480 or 201-242-1119!

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