Is it Just Alimony or Is It All the Money?

Friday, July 15, 2016

If you are considering getting divorced you should think about alimony, whether you might receive it or pay for it. It is a financial award made as part of a divorce. The amount and duration can be agreed to between the parties or be ordered by a judge after a trial. There is no guarantee alimony will be awarded.

Alimony is financial support so a party can continue his or her standard of living, the standard of economic life, paid in part by the other party. Whether alimony should be awarded depends on distinct, objective standards defined by the Legislature in N.J.S.A. 2A:34-23(b). If a party requests alimony, the statute requires that the court consider and make specific findings concerning,

  • The actual need for it by one party and ability of the other to pay for it,
  • 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,
  • The earning capacities, educational levels, vocational skills and employability of the parties,
  • The length of absence from the job market of the party seeking alimony,
  • The parental responsibilities for the children, if any,
  • The time and expense necessary to acquire sufficient education or training to enable the party seeking alimony to find appropriate employment,
  • 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,
  • 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, and
  • Any other factors which the court may deem relevant.

New Jersey recognizes four types of “final award” alimony that may be ordered in the final judgment of divorce.

  1. Open Durational Alimony (formerly Permanent Alimony)

The idea for open durational alimony comes from the long held common law (judge made) principle that a husband has a duty to support his wife after a divorce or separation (though now either spouse may be ordered to support the other).

Open durational alimony is to be decided first and if the trial judge decides that such an award should not be granted, then the court must make specific findings, based on the evidence, stating why. After that the judge must make specific findings on whether the three remaining alimony awards should be awarded and decide which one, or any combination of the three, is warranted by the circumstances and nature of the case.

Open durational alimony is to allow the dependent spouse to live a lifestyle similar to that which he or she had during the marriage. Judges have a lot of discretion in deciding if it should be paid and if so, how much and to whom, because no two cases are alike. Courts are supposed to evaluate the,

  • Parties’ actual needs and ability to pay,
  • Physical condition and social position of the parties,
  • Parties’ joint property and income, and
  • Separate property and incomes of the parties.

Considering all these factors and any others relevant to the issue, the amount of alimony is to be fixed at what the wife (in most cases) would have expected as support, if she were still living with her husband.

Due to changes in the law made in 2014, alimony is no longer a permanent award. An obligation to pay it ends when the payor retires or the person receiving it re-marries or dies. It can normally only be given if the marriage lasted twenty or more years.

  1. Limited Duration Alimony

This type of alimony was created to address a spouse’s post-divorce needs following a shorter-term marriage where permanent or rehabilitative alimony would be inappropriate or inapplicable but where economic assistance for a limited period of time would be fair. It’s not to be awarded if permanent alimony is awarded. The length of the marriage is the deciding factor, all other things being equal.

  1. Rehabilitative Alimony

This is a short-term award to financially support a spouse while he or she prepares to reenter the workforce through training or education. It’s to enable a former spouse to do what’s necessary to become economically self-sufficient, get a job and enhance and improve his or her earning capacity.

An award of rehabilitative alimony is appropriate when a spouse gave up or postponed his or her own education or career to support the household. It would be a lump sum or a short-term award. Depending on the circumstances it may be awarded in addition to other types of alimony, including permanent alimony.

  1. Reimbursement Alimony

Reimbursement alimony was created to combat the idea that professional degrees and licenses are property subject to equitable distribution at the end of a marriage. It’s awarded to a spouse who has made financial sacrifices, resulting in a temporarily reduced standard of living, to allow the other spouse to obtain a degree or professional license to enhance the parties’ future standard of living.

Reimbursement alimony is,

  • Limited to financial contributions made with the mutual understanding that both parties will enjoy a higher income and gain material wealth.
  • Awarded on its own or in combination with another type of alimony.

If you live in central New Jersey and are considering getting divorced, or have decided you want to proceed with a divorce, contact our office so we can schedule a consultation to discuss your situation, how the law may apply, and what you should do to protect your legal rights and interests.