Don’t yell “permanent alimony” in a crowded movie theatre
There is an extraordinary amount of passion engulfing the debate over permanent alimony in NJ. One organization of reformed-mined people, NJ Alimony Reform, is leading the charge against permanent alimony; while opposition to reform (such as establishing judicial guidelines for awarding alimony) is voiced by Cary Cheifetz, the president-elect of the New Jersey chapter of the American Academy of Matrimonial Lawyers:
Many lawyers argue that if guidelines are established in New Jersey, judges will be stripped of the discretion they have now. Guidelines will rely on formulas and calculations, not necessarily on what is equitable or fair” [Via the Asbury Park Press, "Alimony Troubles: Two Sides escalate battle in NJ" by Dustin Racioppi].
Let’s take a look at some of the underpinnings of an award of alimony in New Jersey
The Law of alimony and maintenance in NJ
2A: 34-23. Alimony, maintenance provides in part:
b. In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party. In so doing the court shall consider, but not be limited to, 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;
(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; and
(13) Any other factors which the court may deem relevant.
When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.
c. In any case in which there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the above factors. If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.
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.
In determining the length of the term, the court shall 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.
[Link to the complete text of 2A: 34-23]
What types of alimony can be awarded in New Jersey?
The court in Cox v. Cox does a super job explaining each category of alimony, and states in part:
-Rehabilitative alimony permits a short-term award “from one party in a divorce to enable the former spouse to complete the preparation necessary for economic self-sufficiency,” Rehabilitative alimony thus represents an appropriate remedy where, for example, “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.” Its purpose is to “enhance and improve the earning capacity of the economically dependent spouse.” The focus of rehabilitative alimony is upon the ability of a dependent spouse to engage in gainful employment, combined with the length of the marriage, the age of the parties and the spouse’s ability to regain a place in the workplace (1996). It is not to be considered an exclusive remedy, as “rehabilitative alimony in addition to permanent alimony is favored, where appropriate.” [citations omitted].
-Reimbursement alimony has previously been characterized as “not truly support but an equitable creation designed to eliminate injustice.” It is intended to compensate a spouse who has made financial sacrifices resulting in a reduced standard of living by enabling the other spouse to forego gainful employment while securing an advanced degree or professional license to enhance the parties’ future standard of living. Reimbursement alimony is thus limited to “monetary contributions made with the mutual and shared expectation that both parties to the marriage will derive increased income and material benefits.” (App. Div. 1985) (the case questioning whether reimbursement alimony is truly alimony as it based primarily on past contributions rather than future needs). As in the case of rehabilitative alimony, reimbursement alimony may be awarded separately or in combination with any other form of alimony. [citations omitted].
-Limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate.
-Permanent alimony The most commonly expressed rationale for permanent alimony is:
1. To compensate for benefits conferred on the other spouse by being responsible for homemaking and child rearing. The primary benefit is increased earning capacity of the other spouse who, while enjoying family life, was free to devote all productive time to income production.
2. To compensate for the opportunity costs of homemaking. This is primarily lost earning capacity through the years of major responsibility for the home, either not being employed or holding employment subject to the needs of the family. Courts recognize this opportunity cost when they refer to the fact that the claimant for alimony had remained in the home in the traditional role of full-time homemaker. There is, also, a cost in lessened opportunity for remarriage which is greater for women than men and which increases the longer the marriage lasts. In short, “a transfer of earning power” occurs during a traditional marriage in which the homemaker spouse’s efforts increased the earning capacity of the other spouse at the expense of her own. Alimony is an award formulated to compensate for that transfer by sufficiently (fairly) meeting reasonable needs for support not otherwise met by property division and personal income
My response to the question, “Is a spouse ever entitled to permanent alimony” is absolutely not…never. How can the court and NJ legislature reconcile one provision in the law that grants a “No Fault” divorce after simply living apart for 18 months and giving lip service to the words, “irreconcilable differences;” while another provision shackles a divorced couple in economic handcuffs for life? There are a myriad of other “economic” solutions to ease the burden of divorce on the supported spouse, such as; the other 3 categories of alimony; distribution of marital assets; amount of child support, among others. In the United States, researchers estimate that 40%–50% of all first marriages, and 60% of second marriages, will end in divorce. Divorce may be an unhappy, but not unexpected, ending to a marriage.
Courts and legal scholars alike consider a marriage in terms of an economic partnership. When a business partnership dissolves, one party is not burdened with supporting the other party for life, absence a forever stream of revenue from a wonderful business.
The problem lies in the vestiges of worn out, cliché attitudes the court system still embraces about women. However, women are now the top wage earners in one-third of all marriages.
Nicknamed “manimony” or “malimony”, according to Bari Weinberger, managing partner of the New Jersey-based divorce and family law firm, Weinberger Law Group, women paying support is no longer just limited to famous women like Madonna and Halle Berry.
“Women today are naturally more dominant in the workforce than they’ve ever been and their traditional role of stay-at-home mother has evolved,” says Weinberger.
Statistics back Ms. Weinberger’s observations. In a recent poll conducted by the American Academy of Matrimonial Lawyers, more than half, 56 percent, of divorce lawyers across the United States report an increase in mothers paying child support to fathers in the last three years and 47 percent note a rise in the number of women making monthly alimony payments to their ex-husbands.”
Why should one of the factors in awarding spousal support be consideration of 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? If a married couple seeks a dissolution of their economic partnership, why should the standard of living during the partnership continue? If economic dependency was created by the marriage, there are other tools available to a family court judge to ease the burden. However, if the dependency was a product of disparate skills and educational opportunities available to one spouse or the other, how can the award of permanent alimony ever be justified?
When you lose your job after 23 years working for the same company, why aren’t you entitled to permanent unemployment benefits so you can maintain the same standard of living you maintained while employed? What if a guy is a lifetime “D” student in high school, decides to skip college, and marries a woman who becomes a vice president in a major corporation. The woman earns a big six-figure salary, while the guy earns $42,000 per year, and is the primary care-giver for the couple’s two children. Is this guy entitled to permanent alimony, if the woman seeks a divorce? Why is family court empowered to award this guy a reasonably comparable standard of living enjoyed during the marriage after the marriage ends?
How about a woman (age 25) with a college education that marries a medical student. The couple decide that they want children, and the woman agrees to be a stay-at-home Mom. Ten years later, the man is a doctor and the woman is a stay-at-home Mom for their two children, when the man seeks a divorce. Is the woman entitled to a life time of alimony at the age of 35? My daughter and son-in-law have one child. My daughter has a super career and so does my son-in-law. They wanted children and made the decision that both will continue their career paths. They’re both doing fine and so is my gorgeous, wonderful grand-daughter. Is it easy dropping off their daughter at day care? Nope. But, neither will ask the other for lifetime support.
In today’s world most households require incomes from both parents to maintain the “desired lifestyle.” So, how can the spouse burdened with permanent alimony be expected to maintain a “reasonably comparable standard of living” for himself? And, why should the “supported” spouse be entitled to a “reasonably comparable standard” of living for a lifetime? One cannot live as cheaply as two when both spouses contribute money to the marriage. So, how can one spouse be expected to provide the other spouse with a reasonably comparable lifestyle after the marriage ends?
I love it when a judge is required to engage in a mathematical exercise to demonstrate that one spouse is left with a significant profit at the end of a pay period, while the other spouse is left in the red. Talk about fantasy…There should be a fantasy divorce league.
Marriages end…And so should alimony.