Ask the Expert: Breaking Up Is Hard to Do - Alimony
Navigating alimony during the divorce process can be stressful and overwhelming. As you make decisions, it’s important to fully understand the law.
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.
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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.