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FAQs: Alimony

Is Alimony in NJ Automatic During a Divorce?

No. Alimony is determined using a series of factors as outlined in the New Jersey Alimony statute. There are thirteen specific factors the court will look at, but the basic principle is whether one party can demonstrate the need for alimony and whether the other party can demonstrate their ability to pay. Other factors include how long the marriage was, and what the parties' standard of living was during the marriage. If one party gave up their career to focus on supporting the other or raising the children, the court will look at that. This will also be determinative in figuring out what kind of alimony in NJ is appropriate for the parties.

Is There Such a Thing as Permanent Alimony in NJ?

There are four basic kinds of alimony, based on both the needs of the party and the specific circumstances in the case. The New Jersey eliminated permanent alimony, replacing it with open durational alimony. This is only awarded to marriages that have lasted at least 20 years.

What are the Other Kinds of Alimony?

The opposite of open durational alimony is limited duration alimony. This is support given to a spouse for only a limited period. The goal is to get the recipient spouse to a level where they no longer rely on their former spouse to make ends meet. If the marriage was less than 20 years, then any period of alimony cannot exceed the length of the marriage, unless there are exceptional circumstances.

What are Some Examples of Exceptional Circumstances?

These factors are very similar to the 13 factors in the alimony statute. The court will look at the age and health of the parties, and how dependent they were on the other spouse during the union. If the career or one spouse took precedence over the other's, or if one spouse has been out of the job market for a period to look after the children, then the court may determine that alimony longer than the length of the marriage is warranted. One common occurrence is if the spouse develops a disability and is unable to work full-time and support themselves.

Are There Other Forms of Alimony in NJ?

Rehabilitative alimony is given to one spouse on a very short-term basis. Usually, the goal is to provide support for the spouse while they obtain training or an education to enable them to achieve a steady job. The spouse who will be receiving support should provide a plan to the court which shows the scope of their rehabilitation, such as the training they will receive, how long it will take, and the steps they will take to support themselves. This kind of alimony can be awarded in addition to open durational alimony.

What if one Spouse Needs Temporary Support Until the Property is Divided?

A court might then award what's called pendent lite alimony. This is support paid while the dissolution is pending. The party who needs it should file a motion to ask the court to order it unless the parties agree. Although this kind of award is temporary only, the amount and length of support ordered can have an impact on the ultimate support award upon finalization of the divorce.

I Worked and Helped Pay for my Partner's Tuition. Do I Get any Reimbursement for Helping my Spouse Through School?

There is reimbursement alimony available to a spouse who can demonstrate that they helped support the other spouse in obtaining their education and believed that they would benefit from that party's education. For example, if one party worked and helped defray the costs of education while their spouse was in medical school, and they believed they would then be the spouse of a high-earning doctor, the court will take this into consideration and could award the other spouse a payment as reimbursement for their contribution to the other spouse's education and training.

Are There Guidelines for Alimony in NJ?

Presently, there are not any specific statutory guidelines to determine how much or how long alimony should be awarded for, other than the 13 basic factors offered by statute. One of the most common unofficial methods of calculating alimony in NJ is to look at the gross income of each spouse. Then you would take subtract the two gross incomes and award the lesser-paid spouse 1/3 of the difference.

For illustrative purposes, consider the following: If one spouse makes $150,000.00 each year, and the other makes $50,000.00, then the difference in income is $100,000.00. At that point, one would determine how much 1/3 of that different is - which is $33,000.00. One would then determine how much one spouse should pay each month by dividing that number by 12. In this example, the more monied spouse would need to provide $2,750 each month to the lesser paid spouse.

Are There any Other Factors the Court can Consider in Determining the Amount or Length of Alimony in NJ?

The court can also consider whether one party has more parental responsibilities, and what the equitable distribution of property shakes out to be upon the final dissolution award. Sometimes, one party might receive a significant share in the estate, such that they will not be dependent upon a monthly stipend from the other party. There are also questions of tax consequences of the alimony award, which is set to change in 2019. And finally, the last factor in the statute is any factor deemed relevant by the court. Therefore, the court has vast discretion in looking at the facts and circumstances of the party in determining the type, amount and length of any alimony award. This catch-all provision ensures the court has the freedom to look at the entire picture before making a final decision.

Alimony in NJ is an incredibly fact-sensitive inquiry. Courts will examine a lot of evidence and testimony to determine the fairest outcome. Presenting this evidence to the court can be complex. To discuss the intricacies of alimony further, contact Peter Van Aulen at 201-845-7400 today for a consultation.

How Does Retirement Affect Alimony in NJ?

The current law in New Jersey concerning alimony states that alimony payments will terminate once the paying spouse has reached full retirement age. This means the age when the paying spouse can finally receive full Social Security benefits. This is a rebuttable presumption, which may be overcome if the recipient spouse can demonstrate the existence of multiple factors.

What Factors Rebut the Presumption of Termination of Alimony in NJ Upon Reaching Retirement age?

The party must show that alimony should continue, and the court must look at the parties ages at the time they apply for retirement. The court will look to the age of the parties when they married, and the ages when the alimony was awarded, as well as the degree of dependency the recipient spouse had upon the paying spouse during the formal relationship. If the recipient spouse gave up something of value, like an asset, in exchange for the security of a longer or larger award of alimony, as well as the amount and length of time alimony has already been paid. Of course, the court must also consider the parties' health upon application of retirement, as well as their assets and whether the paying spouse has reached full retirement age. The court will also decide whether the paying spouse has had the ability to save sufficiently for retirement, and their income (both earned and unearned).

How is This new Statute Different From its Predecessor?

The law changed in September 2014 and therefore applies only to prospective agreements. Before the change, an ex-spouse who paid alimony but was facing retirement could only ask for a modification or termination based on a change in circumstances. The new law gives the court more direction if there is an application for modification based on retirement. It also gave the rebuttable presumption to the party upon retirement age, whereas before, the burden fell upon the spouse asking for a reduction to demonstrate a change.

What if one Party Wants to Retire Early in New Jersey?

If a party wants to retire early, and avoid further payments of alimony in NJ, they must demonstrate by a preponderance of the evidence that early retirement is reasonable and made in good faith. This means that they are not retiring early simply to avoid paying alimony. Notably, retiring early by itself is not necessarily sufficient to warrant a modification or reduction in alimony in NJ.

What Must a Party Show to Prove Their Early Retirement is in Good Faith and Reasonable?

These factors are very similar to the other factors the court examines for other alimony questions, such as the parties ages and health at the time of the application for early retirement. The question is very fact-specific. Courts must look at the industry the paying spouse is in, and what the common age of retirement is for that occupation and industry. If there are any mandatory retirement dates at the paying spouse's workplace, the court must take that into consideration. Additionally, the court can look at the reasons the paying spouse has provided for retirement, including pressure from his employer to retire, or incentives offered if he or she does so. Finally, the court has to decide whether the paying spouse will even be able to maintain the alimony payments after retirement, how financially independent they will be, and any other relevant factor the court might consider to be relevant.

What if a Party has not yet Retired, but Asks to Modify Alimony in NJ for Prospective Retirement?

Parties can ask the court to modify or terminate alimony in NJ even if they have not actually yet retired. The statute, amended in 2014, allows parties to modify or terminate alimony payments upon actual, early or prospective retirement. In Mueller v. Mueller, the New Jersey courts had to determine what 'prospective retirement' really means. In the case, the parties had been married for 20 years. They settled, and the husband agreed he would pay his wife $300 each week in what was then called permanent alimony. There were no provisions in the agreement which contemplated retirement of the parties. When he reached age 57, the husband filed a post-judgment motion, arguing that he intended to retire in five years when he became eligible for his full pension. He sought clarification under the statute. Prospective retirement motions allow the paying spouse to determine whether their alimony payments will change once they leave the workforce. This enables spouses to more adequately plan for their retirement.

How Early can a Spouse Apply for a Modification on Prospective Retirement?

In Mueller, although the statute does not have a specific time limit for 'prospective' retirement applications, the court determined the husband's request was premature. The Mueller judge argued that an application between 12 and 18 months of the contemplated retirement date was likely close enough to provide the court with sufficient details to determine the viability of the application. The courts require the spouse requesting a modification to provide 'reasonably current information' concerning their impending retirement. This time period would also allow the paying spouse enough time to start planning for their financial obligations after retirement.

What is Required to Successfully Obtain a Modification of Alimony in NJ for Prospective Retirement?

The Mueller court came up with a simple test to determine whether a modification or termination of alimony is warranted based upon prospective retirement. When the retirement will occur in the near future, rather than several years after the initial application, and the applicant presents a detailed plan for actual retirement, rather than a mere general desire to someday retire. Furthermore, the modification would be tied directly to the retirement date. There would not be any termination or modification until the actual date of retirement.

Changes to alimony in NJ upon retirement, or upon consideration of early or prospective retirement, can be complex and fact-intensive inquiries. It is essential to have a qualified and experienced family lawyer on your side. If you have questions about how retirement might affect alimony awards in your case, contact Peter Van Aulen today at 201-845-7400 for an initial consultation.

Aside From Retirement, is There any Other way for Alimony in NJ to be Modified or Terminated?

Yes. In 2014, the alimony reforms included the ability to modify alimony payment in the event of a loss of employment, or income reduction. The statute also contemplates a general 'change in circumstances.' When the reason for a reduction is because of the paying spouse's job loss, the court has multiple other factors it must consider when deciding whether a modification is warranted. In other words, job loss alone is not enough to change the alimony obligation.

What Factors Does the Court Look at in Reducing Alimony in NJ due to Job Loss?

In addition to determining whether the party actually lost their job, the court will look to the reasons for the loss of income, and whether or not the paying spouse has made documented efforts to find new work, or to pursue a different career in the event of a job loss. This includes whether there's been a good effort to find a new job and mitigate the job loss. The court will also look to the parties' health and its impact on their ability to secure employment. If the paying spouse received any severance based on their termination, or if there are any additional financial circumstances which have changed since the original alimony award, that could affect the court's decision. Additionally, the court has the discretion to determine whether a temporary solution should be devised to modify the alimony payments, to relieve some pressure on the paying spouse - so long as they can demonstrate they are continuing to look for work.

When can Someone Apply for a Modification After the Job Loss?

There is a time limit on when someone can apply to modify alimony in NJ. If the paying spouse has not been able to find employment at the same level as before for at least 90 days, only then can they apply to modify. Before the reform in 2014, the law held that temporary reduction or loss of income was insufficient grounds to modify alimony in NJ.

What if the Paying Spouse is Self-Employed - Is There any Difference in Procedure to Reduce Alimony in NJ?

If the paying spouse is self-employed, they will likely be filing for a modification based on a reduction in income. In that case, the court must examine the economic and non-economic benefits that the paying spouse compared to the same benefits that existed when the original alimony award was determined. This enables the court to determine whether the reduction in income as a self-employed person is in good faith, as well as how reasonable a modification in alimony payments would be.

How can a Party Successful Show That a Reduction in Alimony is Warranted?

The party requesting the court for a modification in alimony in NJ has to show that the loss of employment has resulted in a serious change in the financial situation and that such a change is not temporary. At that point, the court can decide to do several things. The judge can either order a temporary modification while the paying spouse continues to look for work. They can also order a more permanent reduction in alimony, or order alimony to be paid in assets. For example, if the party has an asset that is easily liquidated, then the court might simply award that asset to be paid to the recipient spouse. In addition, the court can also order a periodic review of financial circumstances.

Are There any Other Grounds by Which Alimony in NJ can be Terminated or Reduced?

The alimony reform law passed in 2014 also provided new guidelines for courts to use when determining whether the recipient spouse is cohabitating with another person. If the spouse is found to be cohabitating with another person, then the alimony payments can be suspended or terminated. The new statute no longer allows a modification in payments - therefore, the court has only those two options if cohabitation has occurred.

What Does Cohabitation Entail in NJ?

Under the statute, cohabitation is defined as a 'mutually supportive intimate personal relationship.' Therefore, merely living as roommates would not qualify as cohabitation. It also requires the parties to have taken on the duties and benefits that are usually connected to marriage, even if they do not necessarily live in one house together.

What Factors Does the Court Look at When Deciding if There is a Cohabitating Couple?

If there are commingled or intertwined finances, like a joint bank account, this is a good indication to the court of cohabitation. Similarly, sharing living expenses and bills, or the acknowledgment of a serious relationship by the couple, their friends and family would also be factors for the court to look at. Obviously, if the couple is actually living together, the length of their relationship and how often they speak would be relevant. The court will also see if one party financially supports the other in that relationship. If the couple shares chores, and any other factor the court might find relevant in its determination.

Are any of These Factors More Important Than the Other? How Many Does the Spouse Have to Show?

The law does not require that all of these factors are present, nor does it indicate whether one is more important. However, there must be at least some factors present, and overall, the court is interested in whether the relationship is akin to a marital relationship. Proving cohabitation can be difficult, especially when the parties maintain separate households and bank accounts. If the issue of cohabitation is present in your family law matter, it is best to consult a family law attorney with experience in alimony modifications.

Alimony is a crucial issue for divorcing spouses. Having a knowledgeable and tenacious attorney on your side can be decisive in your case. If you are going through a divorce, contact the law offices of Peter Van Aulen today for a free initial consultation at 201-845-7400.

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