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Alimony Facts

Facts About Alimony The payment of alimony, also known as spousal support, can be one of the most contentious issues to resolve in a divorce. The amount and duration of alimony payments are often entwined with property distribution and the amount paid for child support. The general intent of alimony in NJ, as in other states, is to allow a lower income ex-spouse to maintain a lifestyle comparable to that enjoyed while married.

A court may require a spouse to pay alimony on a temporary basis while a divorce is pending. Spousal support may continue after the divorce is final. New Jersey law specifically provides four types of alimony to meet different circumstances. Open durational alimony typically applies in marriages longer than 20 years. Limited duration alimony is an amount to be paid for a specific period of time and generally applies to marriages less than 20 years.

Rehabilitative alimony is intended at allow a spouse to obtain education and skills to become self-supporting. Finally, reimbursement alimony is intended to payback a spouse who worked and helped maintain the household while the other spouse pursued a professional degree or attainment of some other skill. A court may require rehabilitative and reimbursement alimony to be paid in addition to limited duration alimony.

Formulas, Factors and Practices

There is no alimony calculator or any formula in NJ law dictating how much alimony should be paid or for how long. There is not a required number of years of marriage which triggers payment of alimony. Alimony is gender neutral. It can be paid or received by men and women. Payments are generally not impacted by any marital fault such as having an affair.

The law specifies a variety of factors a court must examine when awarding alimony in NJ. These include length of marriage, the needs of a spouse plus the ability of the other to pay, the standard of living during the marriage and the age, health and earning capacity of each spouse. Courts will also consider education, skills and employability of the parties, parental responsibilities, division of marital property and how long temporary alimony has been paid.

When rehabilitative alimony is requested, the court will consider the length of time required and the cost for a spouse to obtain new skills, training or education. The person requesting alimony must outline proposed plans and estimated costs. Financial and non-monetary contributions made by each spouse such as remaining home to raise children and postponing a career to support the other spouse will be of importance to a court when considering reimbursement alimony.

While there is absolutely no law adopting this formula, for many years judges and attorneys have calculated alimony using a practice called "the one-third rule." The lower earning spouse would be awarded 1/3 of the difference of spousal incomes as alimony. For example, if one spouse earned $60,000 and the other earned $30,000, the difference would be $30,000. The lower income spouse would be awarded 1/3 of that difference, amounting to $10,000, to be paid during the year. Current informal practice due to tax reform, which made alimony no longer tax deductible on a federal tax return, suggests using around 25% of the difference in incomes as a starting point for calculating alimony.

Another common practice when awarding limited duration alimony to make the period required for alimony payments equal to half the length of the marriage. Again, there is no written law adopting this practice. Regarding the length of alimony, the law states a judge cannot award an alimony term longer than the length of the marriage unless there are exceptional circumstances. However, it is important to note that just because the law states that the alimony term is not to exceed the length of the marriage does not mean that the court will automatically award a term equal to the length of the marriage. The court use the factors stated in the statute to determine the term.

Modification and Termination

Major changes to alimony laws were enacted in 2014. One change was replacement of permanent alimony with the concept of open duration alimony. These reforms also provided guidelines for modifying or terminating alimony payments.

After payment of alimony has been ordered, either former spouse may request the court to change the amount or length of payment if there has been a substantial change of circumstances. This applies to rehabilitative, open and limited duration alimony. For example, if the payor involuntarily loses a job, suffers an illness or becomes disabled, he may ask the court to temporarily suspend or reduce payments. The payor must wait 90 days to request court action, but the court may order relief retroactive to the date of income loss.

Simply choosing not to work will not excuse someone from paying ordered alimony. In such circumstances, the court will base the ordered amount by imputing income for the person required to pay. The court will consider work and income history and establish an income level which the payor should be capable of earning.

When rehabilitative alimony has been ordered, a recipient may ask the court to extend payments if he or she has not finished a training program or obtained a job as anticipated. The person requesting the change will need to provide adequate proof of changed circumstances.

The 2014 law also allows the court to terminate or suspend alimony payments, after considering various factors, if the recipient cohabitates with another person. Remarriage by the recipient spouse will usually result in termination of open or limited duration alimony. The death of either former spouse terminates all forms of alimony payments. The 2014 law also created a presumption that alimony payments will end once the payor reaches full retirement age defined as the age when the payor can receive full Social Security benefits. However, if the recipient can show good cause, the court may require alimony payments to continue.

Calculating the amount and payment duration of alimony in NJ is complicated. Anyone contemplating divorce and anticipating the need for alimony should consult with an experienced family law attorney. Therefore, you should call the Law Offices of Peter Van Aulen at 201-845-7400 for a consultation.

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