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ALIMONY IN NEW JERSEY

GENERAL OVERVIEW

  • Purpose of alimony is to ensure both spouses continue to enjoy lifestyle reasonably comparable to marital lifestyle.
  • Neither spouse has greater right to marital lifestyle.
  • Fault during marriage is generally not a factor, unless extreme (e.g., attempted murder).
  • If marriage under 20 years, alimony generally shall not exceed number of years of marriage.
  • Reasonable outcome is, in my opinion, half the number of years of marriage, but may be more or less depending on unique facts of case.
  • If marriage over 20 years, then alimony is “open durational.”
  • General rule of thumb for amount is that alimony should be 1/3 difference between incomes.
  • Calculated as if both spouses working at maximum capacity (even if not true).
  • Important to consider whether alimony will be taxable or nontaxable to recipient.
  • Alimony may be completely waived by agreement.
  • Generally entitled to termination when paying spouse reaches full retirement age.
  • May be entitled to suspension or termination if recipient engages in cohabitation.
  • Alimony always subject to modification based on “changed circumstances.”

ALIMONY REFORM IN SEPTEMBER 2014

This article addresses the law as reformed on September 10, 2014. [N.J.S.A. 2A:34-23.]

If your order or agreement was entered before the law took effect, the law as set forth herein may or may not apply. The newly-enacted legislation provides as follows, which is still being interpreted by the Courts:

“This act shall take effect immediately and shall not be construed either to modify the duration of alimony ordered or agreed upon or other specifically bargained for contractual provisions that have been incorporated into: a. a final judgment of divorce or dissolution; b. a final order that has concluded post-judgment litigation; or c. any enforceable written agreement between the parties.” [N.J.S.A. 2A:34-23.]

Much of alimony law is now in flux. The statute took effect comparatively recently, and thus the Courts are continuing to interpret and apply the changes. For that reason, this article often quotes directly from the statutory language. An in-depth analysis of alimony law as it may apply to your case is available via consultation.

FOUR TYPES OF ALIMONY

There are four types of alimony in New Jersey: (1) open durational alimony; (2) limited duration alimony; (3) rehabilitative alimony; and (4) reimbursement alimony. [N.J.S.A. 2A:34-23(b).]

OPEN DURATIONAL & LIMITED DURATION ALIMONY

Open durational and limited duration alimony are two sides of the same coin. Each derives from the well-established common law principle that a supporting spouse has a duty to support his dependent spouse even after a divorce or separation. [Bonanno v. Bonanno, 4 N.J. 268, 273 (1950).]

“All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether [open durational] or limited duration alimony is warranted and awarded.” [Cox v. Cox, 335 N.J. Super. 465, 477 (App. Div. 2000).]

REHABILITATIVE ALIMONY

Rehabilitative alimony is a short-term award for the purpose of financially supporting a spouse while he or she prepares to reenter the workforce through training or education. [Lepis v. Lepis, 83 N.J. 139, 162 (1980).]

“The basic premise of an award of rehabilitative rather than permanent alimony is an expectation that the supported spouse will be able to obtain employment, or more lucrative employment, at some future date.” [Shifman v. Shifman, 211 N.J. Super. 189, 194-95 (App. Div. 1986).]

The objective of rehabilitative alimony is to assist the dependent spouse in obtaining gainful employment so as to “enhance and improve the earning capacity of the economically dependent spouse.” [Cox v. Cox, 335 N.J. Super. 465, 475 (App. Div. 2000).]

“Effectively, rehabilitative alimony is term alimony payable for a reasonable period of time, beyond which it is anticipated such support will no longer be needed.” [Wass v. Wass, 311 N.J. Super. 624 (Ch. Div. 1998).]

An award of rehabilitative alimony is appropriate where “a spouse who gave up or postponed her own education to support the household requires a lump sum or a short-term award to achieve economic self-sufficiency.” [Mahoney v. Mahoney, 91 N.J. 488, 504 (1982).]

Rehabilitative alimony is not an exclusive remedy, and may, in the appropriate circumstance, be awarded in addition to permanent alimony. [Hughes v. Hughes, 311 N.J. Super. 15, 32 (App. Div. 1998).]

“An award of rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award.” [N.J.S.A. 2A:34-23(d).]

“Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur.” [N.J.S.A. 2A:34-23(d).]

REIMBURSEMENT ALIMONY

“Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. An award of reimbursement alimony shall not be modified for any reason.” [N.J.S.A. 2A:34-23(e).]

Reimbursement alimony is limited to “monetary contributions made with the mutual and shared expectation that both parties to the marriage will derive increased income and material benefits.” [Mahoney v. Mahoney, 91 N.J. 488, 502-03 (1982).]

Like rehabilitative alimony, reimbursement alimony can be awarded on its own or in combination with another type of alimony. [N.J.S.A. 2A:34-23(f).]

“An award of reimbursement alimony shall not be modified for any reason.” [N.J.S.A. 2A:34-23(e).]

SETTING AMOUNT & DURATION OF ALIMONY

AT FINAL JUDGMENT. In establishing the amount and duration of an alimony obligation, the Court is required to consider the following factors:

  1. The actual need and ability of the parties to pay;
  2. The duration of the marriage or civil union;
  3. The age, physical and emotional health of the parties;
  4. 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;
  5. The earning capacities, educational levels, vocational skills, and employability of the parties;
  6. The length of absence from the job market of the party seeking maintenance;
  7. The parental responsibilities for the children;
  8. 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;
  9. 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;
  10. 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;
  11. The income available to either party through investment of any assets held by that party;
  12. 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;
  13. The nature, amount, and length of pendente lite support paid, if any; and
  14. Any other factors which the court may deem relevant. [N.J.S.A. 2A:34-23(b).]

Further, for any marriage or civil union less than 20 years, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union. Therefore, for example, alimony in a ten-year marriage is not permitted to exceed ten years unless there are exceptional circumstances.[N.J.S.A. 2A:34-23(c).]

The duration of alimony must be set after consideration of all of the statutory factors identified above. In addition to those factors, the court is also required to consider “the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living established in the marriage or civil union, to which both parties are entitled, with neither party having a greater entitlement thereto.” [N.J.S.A. 2A:34-23(c).]

In determining the length of the term, the court shall also consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate. [N.J.S.A. 2A:34-23(c).]

Exceptional circumstances which may require an adjustment to the duration of alimony include:

  1. The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;
  2. The degree and duration of the dependency of one party on the other party during the marriage or civil union;
  3. Whether a spouse or partner has a chronic illness or unusual health circumstance;
  4. Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;
  5. Whether a spouse or partner has received a disproportionate share of equitable distribution;
  6. The impact of the marriage or civil union on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;
  7. Tax considerations of either party; and
  8. Any other factors or circumstances that the court deems equitable, relevant and material. [N.J.S.A. 2A:34-23(c).]

PENDENTE LITE. Divorce cases in New Jersey often require a significant amount of time, sometimes years, to get to final judgment. The court is authorized by statute to make an award of pendente lite (which is a Latin term meaning “during the proceeding”) support as the circumstances of the parties and the nature of the case shall render “fit, reasonable, and just.” [N.J.S.A. 2A:34-23.] When temporary support is set pendente lite, the Court must determine support based on the information it has at the time. That information is often woefully incomplete. Pendente lite support orders are typically “established through the submission of affidavits or certifications and case information statements. Oral argument is likely to precede the entry of the order; in virtually all instances the pendente lite support order will be entered without a plenary hearing.” [Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).]

Indeed, “[t]he State has long recognized the power of the judiciary to prevent irreparable harm and to preserve the status quo through the device of awarding temporary financial support pending a full investigation of the case.” [Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).] “The general purpose of pendente lite support is to maintain the parties in the same or similar situation they were in prior to the inception of the litigation; ‘to preserve the status quo through the device of awarding temporary financial support pending a full investigation of the case.’” [Rose v. Csapo, 359 N.J. Super. 53, 58 (Ch. Div. 2002).] This standard employed during the proceeding is more flexible and discretionary than the standard at final judgment.

Notably, the Courts will often set “unallocated” support awards pendente lite. An unallocated support award is based on each party’s overall financial resources and needs without making a dinstinction between child support and alimony. That is not, however, the proper method. The Rules of Court require the use of the Child Support Guidelines both pendente lite and at final judgment: “The guidelines must be applied in all actions … in which child support is being determined including those involving pendente lite (temporary) support[.]” [Pressler, Current N.J. Court Rules, Appendix IX-A(2) (2017).] Accordingly, upon or after final judgment, the Court should set alimony first and then set child support second: “If child support and alimony, maintenance, or spousal support are being determined simultaneously (for the same family), the court shall determine the amount of alimony, maintenance, or spousal support before applying the child support guidelines, except when the court establishes pendente lite support.” [Pressler, Current N.J. Court Rules, Appendix IX-A(19) (2017).] Nevertheless, as implied under Appendix IX-A, the Court typically sets child support first and then alimony second when ordering support on a pendente lite basis.

 

WHAT IS THE DIFFERENCE BETWEEN AN INTERLOCUTORY ORDER AND A FINAL ORDER?

The distinction between an interlocutory (also known as “pendente lite”) order and a final order is worth exploring. An interlocutory order is one that does not resolve all issues as to all parties.

“[A]ny order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” [R. 4:42-2.]

An interlocutory order by its very nature is temporary and often entered based on incomplete or conflicting evidence. After all, the Court generally has not taken testimony at trial, allowed cross-examination, heard expert opinions, or had the benefit of complete disclosure of the relevant facts obtained during the discovery phase of litigation.

A final order/judgment does resolve all issue as to all parties.

“It is firmly settled that ‘final judgment,’ as used in the rules, means final judgment or final disposition of the case not only as to all issues but as to all parties.” [Thatcher v. Jerry O’Mahony, Inc., 37 N.J. Super. 139, 142-143 (App. Div. 1955).]

To constitute a final judgment, the order generally must “dispose of all claims against all parties.” [S.N. Golden Estates, Inc. v. Cont’l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998).]

Generally, in a divorce proceeding, every order is interlocutory until a final judgment of divorce is entered. When the order results from a post-judgment motion, however, it is generally final. But a post-judgment order may be interlocutory depending on the circumstances. For example, if further proceedings are scheduled by a post-judgment order (e.g., a plenary hearing), it is probably interlocutory.

The distinction between an interlocutory order and a final order can be quite tricky in the post-judgment context, and I strongly recommend consulting an experienced attorney.

FAULT IS NOT GENERALLY A FACTOR

Marital fault is irrelevant to alimony except in two narrow instances: (1) cases in which fault has affected the economic life of the parties, and (2) “cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.” [Mani v. Mani, 183 N.J. 70, 72 (2005).]

First, cases in which marital fault has negatively affected the economic status of the parties may be considered in the calculation of alimony. By way of example, if a spouse gambles away all savings and retirement funds, and the assets are inadequate to allow the other spouse to recoup her share, an appropriate savings and retirement component may be included in the alimony award.” [Mani v. Mani, 183 N.J. 70, 91 (2005).]

Second, the non-economic fault capable of affecting an alimony award has been described as “egregious fault,” defined as “a term of art that requires not simply more, or even more public acts of marital indiscretion, but acts that by their very nature, are different in kind. By way of example but not limitation, California has legislatively barred alimony payments to a dependent spouse who has attempted to murder the supporting spouse. Deliberately infecting a spouse with a loathsome disease also comes to mind. Underlying those examples is the concept that some conduct, by its very nature is so outrageous that it can be said to violate the social contract, such that society would not abide continuing the economic bonds between the parties. In the extremely narrow class of cases in which such conduct occurs, it may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all.” [Mani v. Mani, 183 N.J. 70, 91-92 (2005).]

GENERAL PURPOSE OF ALIMONY

The general purpose of open durational or limited duration alimony is to allow the dependent spouse to live a lifestyle reasonably comparable to the lifestyle to which he or she grew accustomed during the marriage. [Crews v. Crews, 164 N.J. 11, 26 (2000).]

EQUAL ENTITLEMENT TO MARITAL LIFESTYLE

Both spouses have an equal entitlement to a lifestyle reasonably comparable to the marital lifestyle. [N.J.S.A. 2A:34-23(b)(4), (c).]

MODIFYING ALIMONY

Generally, to request modification of an alimony, you file a motion requesting modification. The process of filing a motion is more fully addressed elsewhere in the Guide: [MNJD Guide to Motions.]

AFTER FINAL JUDGMENT. The amount of an award of alimony is subject to review at any time. The standard for a change in the amount of support payments is that “the party seeking modification has the burden of showing such ‘changed circumstances’ as would warrant relief from the support or maintenance provisions involved.” [Lepis v. Lepis, 83 N.J. 139, 157 (1980).]

“[T]he changed circumstances determination must be made by comparing the parties’ financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations.” [Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).]

“Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.” [Lepis v. Lepis, 83 N.J. 139, 151 (1980).]

Examples of changed circumstances include: (1) an increase in the cost of living; (2) increase or decrease in the supporting spouse’s income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse’s loss of a house or apartment; (5) the dependent spouse’s cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law.[Lepis v. Lepis, 83 N.J. 139, 151 (1980).]

It is, therefore, up to the moving party to make a prima facie case that changed circumstances have occurred. [Lepis v. Lepis, 83 N.J. 139, 157 (1980).]

“By prima facie is meant evidence that, if unrebutted, would sustain a judgment in the proponent’s favor.” [Baures v. Lewis, 167 N.J. 92, 118 (2001).] “[C]ourts have recognized that the prima facie case is to be evaluated solely on the basis of the evidence presented by the plaintiff, irrespective of defendants’ efforts to dispute that evidence.” [Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005).]

Second, after the moving party has made the prima facie showing of changed circumstances, the court may order financial disclosures of both parties to allow the court to make an informed decision as to “what, in light of all the [circumstances] is equitable and fair.” [Lepis v. Lepis, 83 N.J. 139, 158 (1980).]

There are further requirements in an application for a modification of support:

When a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion. When a motion or cross-motion is filed to establish alimony or child support, the pleadings filed in support of, or in opposition to the motion, shall include a copy of a current case information statement. In the event a motion or cross-motion is filed to modify an obligation for alimony or child support based on changed circumstances, the movant shall append copies of the movant’s current case information statement and the movant’s case information statement previously executed or filed in connection with the order, judgment or agreement sought to be modified. If the court concludes either that the party seeking relief has demonstrated a prima facie showing of a substantial change of circumstances or that there is other good cause, then the court will order the opposing party to file a copy of a current case information statement. [R. 5:5-4(a).]

The requirement that both parties update their financial disclosures prior to recalculation of child support must be enforced; it “is not just window dressing.” [Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991).]

“Once the above steps have been completed, the court must decide whether to hold a hearing . . . . [A] party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary. . . . In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded.” [Lepis v. Lepis, 83 N.J. 139, 159 (1980).]

“An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.” [N.J.S.A. 2A:34-23(c).]

PENDENTE LITE. Divorce cases in New Jersey often require a significant amount of time, sometimes years, to get to final judgment. When temporary support is set pendente lite, which is a Latin term meaning “during the proceeding,” the Court must determine support based on the information it has at the time. That information is often woefully incomplete. Pendente lite support orders are typically “established through the submission of affidavits or certifications and case information statements. Oral argument is likely to precede the entry of the order; in virtually all instances the pendente lite support order will be entered without a plenary hearing. R. 5:5-4(a).” [Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).]

Thus, unlike a final award of alimony, which can only be modified on “changed circumstances, litigants need only satisfy the lesser standard of “good cause” to modify an interlocutory order, such as pendente lite support. [Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257-264 (App. Div. 1987).] For example, Courts are often convinced to reevaluate pendente lite support orders based on information obtained through the discovery process. The Court has “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.” [Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983).] In addition to being much easier to modify, pendente lite obligations are subject to reallocation at the time of trial and are extinguished by the Final Judgment of Divorce unless they are expressly preserved. [Mallamo v. Mallamo, 280 N.J. Super. 8, 12 (App. Div. 1995).] This standard employed during the proceeding is more flexible and discretionary than the standard at final judgment.

(See the section above entitled “What is the difference between an interlocutory order and a final order?” for more information on telling the difference between pendente lite and final orders.)

MODIFYING DURATION OF ALIMONY

Modification of the duration of alimony is typically more difficult than modifying the amount of alimony.

“An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.” [N.J.S.A. 2A:34-23.]

“The statute includes two standards for modification. Although the amount of the award may be modified upon a showing of either a change in circumstances or the nonoccurrence of circumstances that the court found would occur at the time of the award, the length of the term may not be modified ‘except in unusual circumstances.’ The heightened showing that this standard requires for modification of the term preserves the distinction between ‘limited duration’ and permanent alimony. With regular extensions based upon comparative needs and ability to pay, ‘limited duration’ alimony would soon become a substitute for permanent alimony ‘where it would [not] otherwise be awarded.’ The result would be a form of ‘substitution’ as unfair to supporting spouses as use of limited duration alimony as a ‘substitute for permanent alimony’ is to supported spouses.” [Gordon v. Rozenwald, 380 N.J. Super. 55 (App. Div. 2005).]

Note, however, that the statute and case law cited above applies to limited duration alimony. Rehabilitative alimony is different.

“The length of a term of limited duration alimony is based primarily upon the historical facts of the marital enterprise, not predictions about future events as is a term of rehabilitative alimony.” [Gordon v. Rozenwald, 380 N.J. Super. 55 (App. Div. 2005).]

“An award of rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award.” [N.J.S.A. 2A:34-23.]

Further, with rehabilitative alimony, “[s]ince a supported spouse’s attainment of economic self-sufficiency is the essential anticipated “circumstance” that a court must find to justify an award of rehabilitative alimony, the ‘nonoccurrence’ of that circumstance provides the requisite foundation for a modification of such alimony. Moreover, if events subsequent to the divorce show that it is no longer reasonable to anticipate that the supported spouse will ever become economically self-sufficient, the alimony award should be converted from rehabilitative to permanent.” [Milner v. Milner, 288 N.J. Super. 209 (App. Div. 1996).]

MODIFYING ALIMONY FOR NON-SELF-EMPLOYED INDIVIDUALS

When a person who is not self-employed seeks modification of alimony, the court shall consider the following factors:

(1) The reasons for any loss of income;

(2) Under circumstances where there has been a loss of employment, the obligor’s documented efforts to obtain replacement employment or to pursue an alternative occupation;

(3) Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;

(4) The income of the obligee; the obligee’s circumstances; and the obligee’s reasonable efforts to obtain employment in view of those circumstances and existing opportunities;

(5) The impact of the parties’ health on their ability to obtain employment;

(6) Any severance compensation or award made in connection with any loss of employment;

(7) Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;

(8) The reasons for any change in either party’s financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party’s financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;

(9) Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and

(10) Any other factor the court deems relevant to fairly and equitably decide the application. [N.J.S.A. 2A:34-23(k).]

Further, “[u]nder circumstances where the changed circumstances arise from the loss of employment, the length of time a party has been involuntarily unemployed or has had an involuntary reduction in income shall not be the only factor considered by the court when an application is filed by a non-self-employed party to reduce alimony because of involuntary loss of employment.” [N.J.S.A. 2A:34-23(k).]

Finally, “no application shall be filed until a party has been unemployed, or has not been able to return to or attain employment at prior income levels, or both, for a period of 90 days.” [N.J.S.A. 2A:34-23(k).]

MODIFYING ALIMONY FOR SELF-EMPLOYED INDIVIDUALS

“When a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, then that party’s application for relief must include an analysis that sets forth the economic and noneconomic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.” [N.J.S.A. 2A:34-23(l).]

TEMPORARY REMEDIES AVAILABLE

“When assessing a temporary remedy, the court may temporarily suspend support, or reduce support on terms; direct that support be paid in some amount from assets pending further proceedings; direct a periodic review; or enter any other order the court finds appropriate to assure fairness and equity to both parties.” [N.J.S.A. 2A:34-23(m).]

NECESSITY OF CASE INFORMATION STATEMENTS

When you file a motion requesting support in a divorce proceeding, you are required to attach a completed Case Information Statement. Specifically, the Rules of Court state as follows: “When a motion or cross-motion is filed to establish alimony or child support, the pleadings filed in support of, or in opposition to the motion, shall include a copy of a current case information statement.” [R. 5:5-4(a).]

When you file a motion requesting to modify support based on changed circumstances, you are required to attach a newly-completed Case Information Statement and the Case Information Statement filed when the support order you are asking to change was established. Specifically, the Rules of Court state as follows: “In the event a motion or cross-motion is filed to modify an obligation for alimony or child support based on changed circumstances, the movant shall append copies of the movant’s current case information statement and the movant’s case information statement previously executed or filed in connection with the order, judgment or agreement sought to be modified.” [R. 5:5-4(a).]

If the moving party successfully established a prima facie case of changed circumstances warranting modification of support, the Court will require the responding party to file a Case Information Statement too. Specifically, the Rules of Court provide as follows: “If the court concludes either that the party seeking relief has demonstrated a prima facie showing of a substantial change of circumstances or that there is other good cause, then the court will order the opposing party to file a copy of a current case information statement.” [R. 5:5-4(a).] In many cases, the responding party will simply complete a Case Information Statement and attach the document to his responding paperwork to expedite the process.

Compliance with these rules is mandatory. The Court can and most often will refuse to consider your request to establish or modify support if you fail to provide an updated Case Information Statement (commonly referred to as a “CIS”), and in cases where you are seeking modification, your previously-filed Case Information Statement. In fact, the Appellate Division has held that a Trial Court committed reversible error when it ordered support without the benefit of filed Case Information Statements.  [Terry v. Terry, 270 N.J. Super. 105 (App. Div. 1994).] The requirement that the party seeking establishment or modification of support submit a Case Information Statement “is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movant in a modification case.”  [Gulya v. Gulya, 251 N.J. Super. 250, 253-254 (App. Div. 1991).]

NO MODIFICATION FOR TEMPORARY CHANGE

“Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.” [Lepis v. Lepis, 83 N.J. 139, 151 (1980).]

“Temporary circumstances are an insufficient basis for modification.” [Innes v. Innes, 117 N.J. 496, 504 (1990).]

Temporary unemployment is insufficient. “Parenthetically there is nothing in the record before us to indicate that the defendant is incapacitated or otherwise incapable of working or that his unemployment is other than temporary.” [Bonanno v. Bonanno, 4 N.J. 268, 275 (1950).]

In Larbig v. Larbig, the Court refused a hearing on the factual issues on the basis that “after just 20 months, not enough time had elapsed for the Court to be convinced that the decrease was anything but temporary.” [Larbig v. Larbig, 384 N.J. Super. 17(App. Div.2006).]

Nevertheless, all these cases predate the amended alimony statute, which was passed in September 2014. [N.J.S.A. 2A:34-23.] The statute now permits, and perhaps encourages, temporary remedies. “When assessing a temporary remedy, the court may temporarily suspend support, or reduce support on terms; direct that support be paid in some amount from assets pending further proceedings; direct a periodic review; or enter any other order the court finds appropriate to assure fairness and equity to both parties.” [N.J.S.A. 2A:34-23(m).] This seems to represent a significant change in the preexisting law discussed above (exemplified by the decisions in Lepis, Innes, Bonanno, and Larbig), and the change was perhaps aimed at eliminating perceived unfairness for those paying support who experience joblessness or other temporary financial setbacks. The Courts are yet to determine the effect of this new language on the law of alimony, and it is possible that it will be much easier to obtain temporary modifications of alimony going forward.

MUST DEMONSTRATE ATTEMPTS TO IMPROVE DIMINISHED CIRCUMSTANCES

The court in Arribi v. Arribi held that a father who was ordered to pay support could not decide to accept only employment in his field after becoming unemployed and thereby remaining, for a considerable period of time, financially unable to pay support. [Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982).]

“One cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one’s family.” [Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015).]

“As we have recognized, it is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances.” [Donnelly v. Donnelly, 405 N.J. Super. 117, 132, n.5 (App. Div. 2009).]

In Aronson v. Aronson, the Court denied a request to modify support because “in the face of what he testified were external pressures on the viability of his practice, [he had an obligation] to attempt to earn more money. He did not do so. … Clearly, defendant made no meaningful effort to improve his status. On the contrary, what he did was to allow his practice to continue to diminish unchecked while bemoaning his fate.” [Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991).]

IMPUTED INCOME

The Court will set support as if both parties are working at maximum capacity, whether or not that is true. When the Court assigns an income to a party based on the amount of income he or she is capable of earning, rather than actually earning, it is known as “imputed income.” In the child support context, imputation of income is address directly in the Rules of Court, and those principles have been incorporated into alimony by the Courts.

RULES OF COURT. The following quotations are from the Rules of Court and specifically address setting a parent’s child support obligation. The Courts, however, have incorporated these principles into alimony. The Appellate Division in Elrom v. Elrom, after quoting directly from the Appendix IX-A(12) regarding child support, held that “[t]hese legal precepts equally apply when establishing a party’s obligation to pay alimony.” [Elrom v. Elrom, 439 N.J. Super. 434, 435 (App. Div. 2015).]

As to child support, “[i]f the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:

a. impute income based on potential employment and earning capacity using the parent’s work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent’s former income at that person’s usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);

b. if potential earnings cannot be determined, impute income based on the parent’s most recent wage or benefit record (a minimum of two calendar quarters) on file with the NJDOL (note: NJDOL records include wage and benefit income only and, thus, may differ from the parent’s actual income); or

c. if a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the prevailing New Jersey minimum wage.” [Pressler, Current N.J. Court Rules, Appendix IX-A(12) (2017).]

“In determining whether income should be imputed to a parent and the amount of such income, the court should consider:

(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,

(2) the reason and intent for the voluntary underemployment or unemployment,

(3) the availability of other assets that may be used to pay support, and

(4) the ages of any children in the parent’s household and child-care alternatives.” [Pressler, Current N.J. Court Rules, Appendix IX-A(12) (2017).]

“The determination of imputed income shall not be based on the gender or custodial position of the parent. Income of other household members, current spouses, and children shall not be used to impute income to either parent except when determining the other-dependent credit.” [Pressler, Current N.J. Court Rules, Appendix IX-A(12) (2017).]

When imputing income to a parent who is caring for young children, the parent’s income share of child-care costs necessary to allow that person to work outside the home shall be deducted from the imputed income.” [Pressler, Current N.J. Court Rules, Appendix IX-A(12) (2017).]

“These legal precepts [under the Rules of Court for imputing income when setting child support] equally apply when establishing a party’s obligation to pay alimony.”  [Elrom v. Elrom, 439 N.J. Super. 434, 435 (App. Div. 2015).]

CASE LAW. The Court “may impute income” in the process of “determining an appropriate alimony award.” [Tannen v. Tannen, 416 N.J. Super. 248, 261 (App. Div. 2010).]

In one example, the Court imputed income to a spouse for alimony purposes based on earning capacity despite his actual job earning a lower income. [Storey v. Storey, 373 N.J. Super. 464, 474-80 (App. Div. 2004).]

“[O]ne cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one’s family.” [Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982).]

The New Jersey Supreme Court in Gnall v. Gnall affirmed the imputation of income to a spouse based on past salary as a computer programmer despite his desire to work as a teacher for lower pay. [Gnall v. Gnall, 432 N.J. Super. 129, 159 (App. Div. 2013).]

Further, “failure … to provide adequate financial information place[s] the hearing judge in a position where he [or she] ha[s] to … realistically impute income.” [Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002).]

“Imputation may also be justified when examining income reported by self-employed obligors, who control the means and the method of their earnings.” [Elrom v. Elrom, 439 N.J. Super. 434, 435 (App. Div. 2015).]

“Both when setting child support and in reaching a proper alimony award, a judge must examine not only each party’s income, but also his or her earning ability.” [Gnall v. Gnall, 432 N.J. Super. 129, 159 (App. Div. 2013).]

COHABITATION

“Alimony may be suspended or terminated if the payee cohabits with another person.” [N.J.S.A. 2A:34-23(g).] Notably, although the word “modified” was left out of the new statute, many judges continue to hold that alimony may also be modified.

“Cohabitation involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union but does not necessarily maintain a single common household.”  [N.J.S.A. 2A:34-23(g).]

When assessing whether cohabitation is occurring, the court must consider the following factors:

  1. Intertwined finances such as joint bank accounts and other joint holdings or liabilities;
  2. Sharing or joint responsibility for living expenses;
  3. Recognition of the relationship in the couple’s social and family circle;
  4. Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship;
  5. Sharing household chores;
  6. Whether the recipient of alimony has received an enforceable promise of support from another person within the meaning of subsection h. of R.S.25:1-5; and
  7. All other relevant evidence. [N.J.S.A. 2A:34-23(g).]

“In evaluating whether cohabitation is occurring and whether alimony should be suspended or terminated, the court shall also consider the length of the relationship.” [N.J.S.A. 2A:34-23(g).]

“A court may not find an absence of cohabitation solely on grounds that the couple does not live together on a full-time basis.” [N.J.S.A. 2A:34-23(g).]

RETIREMENT

“Alimony may be modified or terminated upon the prospective or actual retirement of the obligor.” [N.J.S.A. 2A:34-23(j).]

There are essentially three standards governing applications to modify or terminate alimony based on retirement.

The first standard applies when the alimony was ordered or agreed upon in writing after September 10, 2014 and the supporting spouse has reached full retirement age under Social Security rules. New Jersey law provides as follows:

(1) There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled. The court may set a different alimony termination date for good cause shown based on specific written findings of fact and conclusions of law. The rebuttable presumption may be overcome if, upon consideration of the following factors and for good cause shown, the court determines that alimony should continue:

(a) The ages of the parties at the time of the application for retirement;

(b) The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award;

(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;

(d) Whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;

(e) The duration or amount of alimony already paid;

(f) The health of the parties at the time of the retirement application;

(g) Assets of the parties at the time of the retirement application;

(h) Whether the recipient has reached full retirement age as defined in this section;

(i) Sources of income, both earned and unearned, of the parties;

(j) The ability of the recipient to have saved adequately for retirement; and

(k) Any other factors that the court may deem relevant.

If the court determines that the presumption has been overcome, then the court must apply the alimony factors as set forth in subsection b. of this section to the parties’ current circumstances in order to determine whether modification or termination of alimony is appropriate. If the obligor intends to retire but has not yet retired, the court shall establish the conditions under which the modification or termination of alimony will be effective.” [N.J.S.A. 2A:34-23(j)(1).]

The second standard applies when alimony was ordered or agreed upon in writing after September 10, 2014 and the supporting spouse seeks to retire prior to reaching full retirement age under Social Security Rules. New Jersey law provides as follows:

“(2) Where the obligor seeks to retire prior to attaining the full retirement age as defined in this section, the obligor shall have the burden of demonstrating by a preponderance of the evidence that the prospective or actual retirement is reasonable and made in good faith. Both the obligor’s application to the court for modification or termination of alimony and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification.

In order to determine whether the obligor has met the burden of demonstrating that the obligor’s prospective or actual retirement is reasonable and made in good faith, the court shall consider the following factors:

(a) The age and health of the parties at the time of the application;

(b) The obligor’s field of employment and the generally accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

(d) The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;

(e) The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;

(f) The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;

(g) The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and

(h) Any other relevant factors affecting the obligor’s decision to retire and the parties’ respective financial positions. If the obligor intends to retire but has not yet retired, the court shall establish the conditions under which the modification or termination of alimony will be effective.” [N.J.S.A. 2A:34-23(j)(2).]

The third standard applies when alimony was ordered or agreed upon in writing prior to September 10, 2014. New Jersey law provides as follows:

(3) When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith retirement age. Upon application by the obligor to modify or terminate alimony, both the obligor’s application to the court for modification or termination of alimony and the obligee’s response to the application shall be accompanied by current Case Information Statements or other relevant documents as required by the Rules of Court, as well as the Case Information Statements or other documents from the date of entry of the original alimony award and from the date of any subsequent modification. In making its determination, the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate:

(a) The age and health of the parties at the time of the application;

(b) The obligor’s field of employment and the generally accepted age of retirement for those in that field;

(c) The age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which continued employment would no longer increase retirement benefits;

(d) The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;

(e) The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;
(f) The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;

(g) The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and

(h) Any other relevant factors affecting the parties’ respective financial positions.” [N.J.S.A. 2A:34-23(j)(3).]

Finally, it is important to remember that “assets distributed between the parties at the time of the entry of a final order of divorce or dissolution of a civil union shall not be considered by the court for purposes of determining the obligor’s ability to pay alimony following retirement.” [N.J.S.A. 2A:34-23(j).]

ENFORCING ALIMONY

Under certain circumstances, the Court may collect alimony through the Probation Department via wage garnishment. The most simple and effective means of enforcing an alimony order is to request payment through the Probation Department, typically via wage garnishment.The Probation Department will keep a tally of how much is owed and how much has been received, and it has the authority to conduct enforcement proceedings without the need to file a costly and time-consuming motion.

Nevertheless, when alimony is being paid directly, or if you want to seek enforcement over and above the measures imposed by the Probation Department, you generally must file a motion requesting enforcement. The process of filing a motion is more fully addressed elsewhere in the Guide: [MNJD Guide to Motions.] Please also review the section of the MNJD Guide on seeking enforcement of Court Orders: [MNJD Guide to Enforcement.] Further, there are certain procedural requirements. Specifically, “[w]hen a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion.” [R. 5:5-4(a).]

“On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by R. 1:10-3, grant any of the following remedies, either singly or in combination:

  1. fixing the amount of arrearages and entering a judgment upon which interest accrues;
  2. requiring payment of arrearages on a periodic basis;
  3. suspension of an occupational license or driver’s license consistent with law;
  4. economic sanctions;
  5. participation by the party in violation of the order in an approved community service program;
  6. incarceration, with or without work release;
  7. issuance of a warrant to be executed upon the further violation of the judgment or order; and
  8. any other appropriate equitable remedy.” [R. 5:3-7(b).]

CRIMINAL CHARGE FOR WILLFUL NONSUPPORT

In the State of New Jersey, it is a crime to willfully refuse to pay support. Specifically, “A person commits a crime of the fourth degree if he willfully fails to provide support which he can provide and which he knows he is legally obliged to provide to a spouse, child or other dependent.” [N.J.S.A. 2C:24-5.]

Further, “[a]t any time after a sworn complaint is made charging an offense under section 2C:24-5 and before trial, the court may enter such temporary order as may seem just, providing for the support of the spouse or children, or both, pendente lite, and may punish a violation of such order as for contempt.” [N.J.S.A. 2C:62-1(a).]

“Before trial, with the consent of the defendant, or after conviction, instead of imposing the penalty provided for violation of section 2C:24-5, or in addition thereto, the court, having regard to the circumstances and the financial ability or earning capacity of the defendant, may make an order, which shall be subject to change by the court from time to time as circumstances may require, directing the defendant to pay a sum certain periodically to the spouse, or to the guardian or custodian of the minor child or children, or to an organization or individual approved by the court as trustee. The court may release the defendant from custody on probation, upon his or her entering into a recognizance, with or without surety, in such sum as the court may order and approve. The condition of the recognizance shall be such that if the defendant shall personally appear in court whenever ordered to do so, and shall comply with the terms of the order, or of any modification thereof, the recognizance shall be void, otherwise it will remain in full force and effect. The court may, in addition to or in place of any order under this section, order and direct that any sentence of imprisonment be served periodically, instead of consecutively, during periods of time between Friday at 6 p.m. and Monday at 8 a.m. or at other times or on other days, whenever the court determines the existence of proper circumstances and that the ends of justice will be served thereby. Any person so imprisoned shall be given credit for each day or fraction of a day to the nearest hour actually served.” [N.J.S.A. 2C:62-1(b).]

“If the court be satisfied by information and due proof under oath that the defendant has violated the terms of the order, it may forthwith proceed with the trial of the defendant under the original charge, or sentence the defendant under the original conviction or plea of guilty, or enforce the suspended sentence or punish for contempt, as the case may be. In case of forfeiture of a recognizance, and the enforcement thereof by execution, the sum recovered may, in the discretion of the court, be paid in whole or part to the spouse, or to the guardian, custodian or trustee of such minor child or children.” [N.J.S.A. 2C:62-1(c).]

Andrew M. Shaw, Esq. - Somerville, NJ Divorce Lawyer

Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.

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