Edit ModuleShow Tags

Ask the Expert: Determining and Enforcing Alimony Payments

Navigating alimony during the divorce process can be stressful and overwhelming. As you make decisions, it’s important to fully understand the law.


Published:

SPONSORED BY 

 

PHOTO PROVIDED BY NORRIS MCLAUGHLIN & MARCUS, P.A.
 

A lot goes into figuring out alimony and, as outlined in part one of our series on alimony, the amount depends on things like the disparity of income and length of the marriage. 

Imputing Income

The first factor in the alimony law is the “actual need and ability of the parties to pay.” One way to measure a party’s need for alimony or ability to pay alimony is by looking at his or her income during the marriage, through tax returns, W-2s, profit and loss statements, and case information statements. In many cases, one spouse is not working or never worked, though he or she has the ability to work. In other cases, one spouse works, but not to his or her full potential, or has income that is not reported on W-2s or tax returns. In such situations, a court may choose to impute income to that party. In other words, the court will treat that party as though he or she earns, or can earn, a particular amount regardless of whether he or she actually earns that amount.

Imputation of income is a discretionary matter not capable of precise or exact determination. It requires a judge to realistically appraise an individual’s capacity to earn along with job availability. When one party is unemployed or underemployed, one or both of the parties have the option of hiring an employability or vocational expert to determine the party’s earning capacity. But imputation is not mandated in every case. 

Modifying or Terminating Alimony

In general, an alimony award is subject to modification or termination upon showing a substantial and permanent change in circumstances. It’s important to note that courts have consistently rejected requests for modification based on circumstances that are only temporary or that are expected but have not occurred. For example, the court requires a substantial period of unemployment, including proof of search for a replacement job, before finding unemployment to be an actual change in circumstances. 

A significant change in circumstances warranting a review of alimony for the purposes of modification/termination could be cohabitation by the alimony-receiving spouse, or retirement, among others. Any application seeking to modify alimony or child support must also include a copy of all prior case information statements filed on that party’s behalf, as well as a current case information statement. 

Enforcing an Alimony or Child Support Award

What are the options when the payor spouse has not satisfied his or her alimony or child support obligations? The first action the payee spouse should take is to file an application “to enforce litigant’s rights.” This is a means of asking the court to enforce something that has already been ordered. The court rules even provide for specific remedies for the violation of an alimony or child support order under the law, which include economic sanctions, fixing the amount of arrears, and issuance of a warrant, among other options. 

One way to avoid violations of child support or alimony orders is to have child support and alimony paid through the county probation department via income withholding, when the support is automatically deducted from the payor’s paycheck. Once a payor accrues substantial arrears, the probation department can institute enforcement proceedings itself. This is an additional remedy to the payee spouse.

Stay tuned for next month’s post in Jeralyn’s “Breaking Up is Hard to Do” series on alimony.

Read More:

What You Need to Know About Figuring Out Alimony
What You Need to Know About Child Support
What You Need to Know About Physical Custody
What You Need to Know About Legal Custody

Advice to the Prospective Divorce Client
10 Things the Client Should Never Say to Children 
Dispelling Divorce Law Myths

 

 

Jeralyn L. Lawrence, a Member of Norris McLaughlin & Marcus and Chair of its Matrimonial & Family Law Group, devotes her practice to matrimonial, divorce, and family law. Lawrence is Treasurer of the New Jersey State Bar Association and a former Chair of its Family Law Section.  She is also Treasurer of the American Academy of Matrimonial Lawyers, NJ Chapter. She has been widely recognized for her contributions to her profession and she is a three-time recipient of the New Jersey State Bar Association Distinguished Legislative Service Award, the highest recognition of a member's noteworthy legislative service. She has also been named as one of New Jersey's Top 50 Women in Business by NJBIZ and was recognized by her peers as one of the Ten Under Forty, New Jersey's top 10 matrimonial lawyers under the age of 40; and New Jersey Law Journal's 40 Under 40, 40 accomplished and promising attorneys in the State of New Jersey under the age of 40. She was also a New Jersey Law Journal 2015 Attorney of the Year finalist.


What You Need to Know About Figuring Out Alimony 

PHOTOs PROVIDED BY NORRIS MCLAUGHLIN & MARCUS, P.A.
 

It’s the long-standing law in New Jersey that divorcing parties are entitled to maintain a standard of living reasonably comparable to what they enjoyed during their marriage. This often requires the earning spouse (or the higher-earning spouse) to provide support, or “alimony,” to the dependent spouse. The amount and duration of the alimony obligation is highly fact-sensitive and depends on factors like the disparity in incomes, the length of the marriage, the ability of the dependent spouse to improve his or her earning capacity, the age of the parties’ children, and any other exceptional circumstances unique to the marriage.

What Goes into Figuring Out Alimony?

An award of alimony is extremely fact-sensitive. A subsection of the law discusses the factors that the court considers in determining the type, length, and amount of alimony. They are:

  • The actual need and ability of the parties to pay
  • The duration of the marriage or civil union
  • The age, physical and emotional health of the parties
  • 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 entitlement to that standard of living than the other
  • The earning capacities, educational levels, vocational skills, and employability of the parties
  • The length of absence from the job market of the party seeking maintenance
  • The parental responsibilities for the children
  • 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
  • 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
  • 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
  • The income available to either party through investment of any assets held by that party
  • 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
  • The nature, amount, and length of interim (pendent lite) support paid, if any, which is unallocated support paid pending the entry of an Order formally establishing support
  • Any other factors which the court may deem relevant

The Four Types of Alimony

Four types of alimony can be awarded by a court or agreed upon by the parties to a divorce. They are: 

Permanent alimony: Permanent alimony (renamed and now known as Open Durational Alimony) is reserved for marriages of long duration where economic need is demonstrated. If an award for open durational alimony is found to be not warranted, then the court must state the basis for its findings, and may thereafter consider whether any of the other three types of alimony are appropriate. Open durational alimony will be awarded only if the marriage is long-term. Neither our case law nor statutes define what length makes a long-term marriage. Cases decided prior to the formal recognition of limited duration alimony found that a 10 to 13-year marriage was long-term, though the current trend is that a marriage would need to be longer than 14 years to warrant open durational alimony. Cases where the parties were married between 12 and 14 years are considered “on the cusp,” which require a closer consider the facts of the case to determine whether open durational or limited duration alimony is appropriate.

Limited duration alimony: Like open durational alimony, limited duration alimony is awarded when one spouse demonstrates an economic need to reasonably maintain the marital standard of living. The only difference between limited duration alimony and open durational alimony is the length of the marriage. Limited duration alimony was formally recognized by our legislature and incorporated into the alimony statute in 1999. The legislative intent behind creating limited duration alimony was to ensure that the dependent spouse in a marital relationship of less than substantial length was compensated for his or her contribution to the marital partnership.

Rehabilitative alimony: This is a short-term award of alimony that is specifically intended to enable one spouse to complete the preparation necessary for economic self-sufficiency, or to “rehabilitate” oneself. This type of alimony is commonly awarded when one spouse gave up his or her education or career to support the household while the other spouse continued in his or her education or career.To determine the length of rehabilitative alimony, the supported spouse should set forth a plan that includes the steps he or she will take to become self-sufficient. For example, a litigant can show that he has enrolled in nursing school, that he intends to graduate in two years, and that he will need to be employed for one year to become self-sufficient. Rehabilitative alimony can be awarded in addition to open durational or limited-duration alimony.

Reimbursement alimony: This is a short-term award of alimony meant to eliminate the imbalance that occurs when one spouse supported the other spouse so he or she could advance his or her education, but then does not get to reap the benefits of that education due to the impending divorce. For example, a reimbursement situation would arise if one spouse paid the other spouse's medical school expenses and then the parties divorced shortly after the medical school graduation. Like rehabilitative alimony,reimbursement alimony can be awarded in addition to open durational or limited duration alimony.

Stay tuned for next month’s post in Jeralyn’s “Breaking Up is Hard to Do” series on alimony.

Previously:
What You Need to Know About Child Support
What You Need to Know About Physical Custody
What You Need to Know About Legal Custody

Advice to the Prospective Divorce Client
10 Things the Client Should Never Say to Children 
Dispelling Divorce Law Myths

 

Jeralyn L. Lawrence, a Member of Norris McLaughlin & Marcus and Chair of its Matrimonial & Family Law Group, devotes her practice to matrimonial, divorce, and family law. Lawrence is Treasurer of the New Jersey State Bar Association and a former Chair of its Family Law Section.  She is also Treasurer of the American Academy of Matrimonial Lawyers, NJ Chapter. She has been widely recognized for her contributions to her profession and she is a three-time recipient of the New Jersey State Bar Association Distinguished Legislative Service Award, the highest recognition of a member's noteworthy legislative service. She has also been named as one of New Jersey's Top 50 Women in Business by NJBIZ and was recognized by her peers as one of the Ten Under Forty, New Jersey's top 10 matrimonial lawyers under the age of 40; and New Jersey Law Journal's 40 Under 40, 40 accomplished and promising attorneys in the State of New Jersey under the age of 40. She was also a New Jersey Law Journal 2015 Attorney of the Year finalist. 

 

Edit ModuleShow Tags

Archive »Related Content

Trunk or Treat Events in NJ

Ditch the doorbells this Halloween and take your kids to a trunk or treat event in New Jersey

Carnivals in New Jersey

Step right up! Experience the joy of a carnival with your kids.

You Won't Believe Your Eyes at NYC's Museum of Illusions

This reality-defying venue is the latest awesome pop-up museum your kids will be obsessed with.

Gear Up for a Ghost Tour This Halloween

Hunt the paranormal and get the scoop on iconic NJ spirits.

Low-Scare Halloween Attractions for Kids in NJ

These not-so-spooky celebrations are perfect for the youngest kids (and most chicken grown-ups) in your coven.

Add your comment:
Edit ModuleShow Tags
Edit ModuleShow Tags

Sign Up for Our Newsletter!

Consider your weekends planned!
Get the best NJ events, festivals, concerts and activities for families delivered straight to your inbox. 


Edit ModuleShow Tags

   

Edit ModuleShow Tags