Neither Fish Nor Fowl: The Future of Alimony in New Jersey

Monday, June 18, 2012

A resolution has been introduced to the New Jersey Legislature to study use of alimony in New Jersey and identify issues that may need reform.

The resolution, introduced by Assemblyman Sean Kean and Wayne Deangelo, calls for the creation of a “Blue Ribbon Commission to Study Alimony Reform.”

The core section of the resolution states:

“In particular, the commission would review the scope of State alimony laws as compared with those in other states, trends in alimony awards, whether current economic conditions have affected trends in State alimony awards, and any other such issues as the commission may identify as necessary to understanding and reforming State alimony law.”

Alimony in New Jersey

The award of alimony in New Jersey is controlled by statute. The statute describes the potential types of alimony as “permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony.”

The statute goes on to provide 13 factors a court should consider when determining the amount of alimony to be awarded.

These factors appear, as one commentator noted, “At first reading, these legislative guidelines for awarding alimony appear fair and appropriate. Closer inspection, however, reveals that the statutory criteria are so broad, idiosyncratic or unclear in purpose or direction that they actually provide little practical guidance for-or limitation upon- judicial discretion.”

New Jersey’s thirteenth factor is the catchall, “any other factor which the court shall expressly find to be just and proper” which allows a judge very broad discretion to consider any and everything.

Marital Lifestyle

In New Jersey, in the Crews decision, the Supreme Court required family courts to consider the marital lifestyle and make factual findings about the marital standard of living when determining alimony.

In Crews, the Supreme Court “reaffirm[ed] the Lepis principle that the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supported spouse during the marriage.”

The Court emphasized “[t]he importance of establishing the standard of living experienced during the marriage …. It serves as the touchstone inquiry for the initial alimony award.”

While the case created controversy in New Jersey when it was decided, the actual effect of the decision appears to have been less drastic than originally feared.

The Problems with Alimony

Alimony has the problem of lacking a clear, straightforward, purpose, and because of the vagueness of many statutory factors, judges can make awards that appear to some litigants as arbitrary, inconsistent and unfair.

This lack of consistency and alleged unfairness has lead to constant calls for reform. In Massachusetts in 2011, alimony was significantly modified. The most important change was adding a terminal date to all alimony awards at the retirement age of the payor.

However, the theoretical questions with regard to why alimony is paid go back much further. Articles have noted the various, questionable, policy reasons behind alimony, and the resulting haphazardness in the application in actual cases.

Alimony is less common that many suspect. As long ago as 1985, an article found that “It is granted in less than one-fifth of all divorces and in less than half of divorces terminating marriages of more than fifteen years.”

The intervening 25 years have not added to the clarity with which courts view the issue. A Nevada Judge, writing in 2009, entitled his article “Nevada Alimony: An Important policy in need of a coherent policy purpose.”

In the opening of the article, he quotes a 120-year-old Nevada case, where the court commented on the lack of helpfulness from the statutory language, stating, “Largely the statutes contain expressions and provisions of whose meanings, and especially of whose consequential effects, their makers pretty certainly had no clear idea whatever.” The court further notes instead of constancy, the statutory language often results in “chaos.”

New Jersey’s Blue Ribbon Commission

The difficulty for the “blue ribbon Commission” will be what to do? Ending alimony altogether is not likely an option, as it does serve a legitimate purpose in long-term marriages, where typically the wife has remained out of the job market to raise a family.

In those situations, after a divorce she frequently would be limited to low-wage, entry-level positions.

While the gap is closing, at least for educated, younger women, according to some studies, nevertheless, women generally earn less than men do. According to the U.S. Census Bureau, the female-to-male earnings ratio in 2009 was 0.77, indicating fulltime female workers earned 23 percent less than male fulltime workers.

Alimony, whether permanent or temporary, allows some equalization to be made. It also allows for help for education and job training. The advantage of the current process is that it gives a judge broad discretion to tailor the terms of the alimony to a particular situation.

On the other hand, this great discretion means consistency may be lacking across the system. For a process to appear fair, similarly situated persons should be treated the same. Unfortunately, given all of the variables, it is difficult to ensure there is an absolute “apples to apples” treatment.

What to Do?

The Commission will be faced with contradictory pushes and pulls: between men and women, obligors and obligees, judicial activists and philosophical non-interventionists. The challenge will be to come up with positive suggestions that don’t fall prey to the underlying problems of the current system. More narrowly guided discretion would be a good outcome. Perhaps the Commission will develop more specific factors that would enable courts to develop alimony awards that will have rationales that are more objective. Alimony Guidelines, an approach followed in many states, could be useful in New Jersey, which already uses a Guidelines approach in fixing child support. The Guidelines approach would set a presumptive level of alimony, in terms of duration and amount, with variations permitted in the trial court’s discretion for relevant factors and conditions.

Another important reform involves the amount of time that obligor former spouses must spend out of the workforce before trial judges will take seriously their claims of unemployment or underemployment. Some judges say 3 months, some 6 months, some longer. This is an area fraught with too much judicial discretion, in which some obligors receive prompt redress and others never do.

Conclusion

New Jersey is ripe for alimony reform. If handled carefully and well, and without partisan rancor, the Alimony Reform Commission is poised to bring New Jersey’s alimony concepts and statutes into the 21st century. We need a system that is clear, simple, and understandable, and gives appropriate guided discretion to the judiciary. We need a system that offers assistance to lawyers and parties and mediators – all of whom regularly settle alimony disputes without the need for judicial involvement.

The process of alimony reform should be neutral, fair, and transparent, so that most New Jerseyans will feel they are getting a fair shake from the system. If it does not pass that fundamental test, then alimony reform, in this author’s opinion, will not have been worth undertaking.