New Jersey’s amended alimony statute, P.L.2014, CHAPTER 42, approved September 10, 2014, will have courts and practitioners sorting through it for years to come. Changes commence by replacing the “permanent alimony” misnomer with “open durational alimony,” and clarifying the “standard of living” factor in N.J.S.A. 2A:34-23 b. (4), to make clear that “neither party has a greater entitlement to that standard of living than the other.” Now, N.J.S.A. 2A:34-23 b. (13) requires consideration of “[t]he nature, amount, and length of pendente lite support paid, if any[.]” Often an extremely important consideration – particularly in marriages ultimately warranting alimony of limited duration – this factor had only been hinted at in existing case law, and is now explicit. Amended language to subsection b. continues:
In each case where the court is asked to make an award of alimony, the court shall consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court finds otherwise, in which case the court shall make specific written findings of fact and conclusions of law in that regard.
This new provision heralds a welcome departure from the inordinate focus on standard of living and marital lifestyle that befell case analysis in the wake of Crews v. Crews, 164 N.J. 11 (2000), upon the pronouncement that “[t]he importance of establishing the standard of living experienced during the marriage cannot be overstated,” and that “[i]t serves as the touchstone for the initial alimony award and for adjudicating later motions for modification of the alimony award…” If Crews were ever argued to create a premise that the standard of living is singularly important in the alimony calculus, the amendment clearly creates a rebuttable presumption against elevating the importance of factor (4).
N.J.S.A. 2A:34-23 c. has been amended to add the following concerning the duration of relationship and alimony award:
For any marriage or civil union less than 20 years in duration, [arguably defining what presumptively is “open durational alimony,” by establishing what presumptively is not] the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union. Determination of the length and amount of alimony shall be made by the court pursuant to consideration of all of the statutory factors set forth in subsection b. of this section [as done previously, now with new factor (13)]. In addition to those factors, the court shall also 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.
Stated differently, and perhaps wryly, consideration of subsection b. factors to determine the length and amount of the other-than-open-durational alimony award, along with two others, does not reasonably equate to dividing the length of the sub-20 year relationship by two.
But what of these two additional factors? Are they not a bit redundant? “[The] practical impact of the parties’ need for separate residences” is, after all, no more than a more granular subset of the more general factor (1), concerning actual need. By extracting the need for separate residences, the amendment would appear to be highlighting or even elevating that element of need as more crucial to address than others, perhaps due to the unescapable necessity of having a roof over one’s head and the relatively high fixed costs of doing so.
Similarly, additional consideration of the attendant increase in living expenses on the ability of both parties to maintain a reasonably comparable standard of living, recapitulates factor (4). However, considering that factor (4) already contains the clause, “and the likelihood that each party can maintain a reasonably comparable standard of living,” it’s difficult to understand the utility of this new provision.
Quaere: Is the new statutory amendment attempting here to preserve the post-Crews focus on marital lifestyle, while earlier stating that “[n]o factor shall be elevated in importance over any other factor unless the court finds otherwise…”? Why are these extra factors only being applied to sub-20 year cases? Certainly, they can be considered in 20 years and longer relationship cases.
Our courts continue to examine durational factor b. (2), without dictating any bright-line rule to equate the length of domestic relationship with the net outcome of open durational alimony. The statute does not expressly state that a 20-year relationship automatically results in an open durational award. What it does state is that, in sub-20 awards, “the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.”
Subsection c. provides a non-exhaustive list of exceptional circumstances, which may require an adjustment to the duration of alimony. Although the phrase “exceptional circumstances” is first referenced to justify extending awards beyond the length of sub-20 relationships, the exceptional circumstances segment of subsection c. does not state that the only adjustment contemplated was an upward one and, further, does not bar the use of such exceptional factors in adjusting the duration of awards in the 20 year and better cases.
Upon reviewing the c. (1)-(8) non-exhaustive list, those familiar with the pre-amendment statute and attendant case law should be scratching their heads. Although it is nice to see “[t]he degree and duration of the dependency of one party on the other party during the marriage or civil union,” appear in the amended statute – since it captures much of the essential philosophical underpinnings to admeasuring alimony – the balance of these new factors simply rehash well-established concepts concerning age, health, career support or forbearance, share of equitable distribution, parenting responsibilities, tax considerations, and anything else that may rise to the level of creating exceptional circumstances, arguably denoting some extreme or extraordinary outcome.
Alas, poor William of Ockham, 14th century logician and Franciscan friar, who once said, “Pluralitas non est ponenda sine necessitate,” we long for thee. To paraphrase what’s come to be called Occam’s Razor, when you have two competing theories that make exactly the same predictions, the simpler one is the better. The inclusion of so much additional and arguably unnecessary language certainly invites the potential for juridical arcana and tedious litigation. That much is clear.
That being said, once subsection e. makes explicit that “[a]n award of reimbursement alimony shall not be modified for any reason,” f. reminds us that, “[e]xcept as provided in subsection i., nothing in this section shall be construed to limit the court’s authority to award [any of four alimony types or combinations]… as warranted by the circumstances of the parties and the nature of the case.” By approaching the amended statute from subsections b. to i. inclusive – while noticing any significant non-redundant changes – through the good lawyering sensibilities of those pursuing proficiency in the application of pre-amendment statutory and case law, the ends of justice and competent practice should well be served.
Beginning with subsection j.(1), however, dealing with modification or termination of alimony upon the prospective or actual retirement of the obligor, great care must be exercised to understand the generally new substantive law. There is now a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age.
“Full retirement age shall mean the age at which a person is eligible to receive full retirement for full retirement benefits under section 216 of the federal Social Security Act (42 U.S.C. § 416).” Beginning with people born in 1938 or later, age 65 gradually increases until it reaches 67 for people born after 1959. See http://www.ssa.gov/retirement/ageincrease.htm for a helpful calculator.
The presumption may be toppled upon consideration of non-exhaustive factors (a)-(k), examining parties’ ages, health, degree and duration of the economic dependency, quid pro quos, available assets and income, payment history, recipient’s ability to save and attainment of full retirement age. If overcome, then subsection b. alimony factors are applied to current circumstances, to determine whether modification or termination of alimony is appropriate.
Where retirement is sought prior to full retirement age, the obligor must show that retirement is reasonable and in good faith, evidenced by factors j.(2)(a)-(h), including age/health, employment field, motives/expectations, need/ability to pay, etc. Obligor’s and obligee’s papers must typically include any CIS following the original alimony award and current ones; a notable departure from current R.5:5-4(a) requirements.
Much is contained in subsections j.(3)-n.(7), that cannot be addressed within the content limitations of this article.
j.(3)(a)-(h) Retroactive treatment of retirement applications concerning orders/agreements before September 10, 2014;
j.(4) Previously distributed assets [not just retirement benefits] ineligible for determining ability to pay post-retirement;
k.(1)-(10) Modification/involuntary income loss; non-self-employed party, including remedial efforts, health, finances, temporary measures; 90-day waiting period – possible retroactive relief;
l. Modification/involuntary income loss; self-employed party, including analysis of economic and non-economic [misnomer for perks] benefits received from the business [Quaere: When considering subsection l., can k.’s factors, or others obtain];
m. Temporary remedies;
n.(1)-(7) Suspension or termination upon cohabitation – “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;” abrogation of Gayett v. Gayett, 92 N.J. 149 (1983)?
Happy lawyering!
– CJR