United States: A Change Is Gonna Come – New Jersey Legislature Overwhelmingly Passes Alimony Reform Bill

Last Updated: July 1 2014
Article by Robert A. Epstein

After almost three years of legislative discussions, negotiations, arguments, and the like, alimony reform is coming to New Jersey in what is turning out to be light speed.  Late last week, the New Jersey State Assembly unanimously passed a compromised form of long-debated legislation that would represent what many consider to be a substantial overhaul of New Jersey alimony law as we know it.  Today, the Senate Judiciary Committee approved the bill, after which it was granted "emergency" status, and followed by a full Senate vote.  The bill now rests on Governor Christie's desk for his review.  There are many changes in the present form of the bill from that earlier debated in the legislature, by the State Bar, various family law committees, and the like, as this issue has quickly come to a head.  I provide below the major highlights of the law in its present form.

Regarding alimony awards, the law would only apply to awards involved in divorces that are in process, but not yet finalized, and future divorces that have yet to commence.  While some alimony reformists were seeking a retroactive application of the law to provide alimony relief to those payor spouses whose divorces were already finalized (other than through circumstances such as retirement, cohabitation and involuntary job loss/income decline-type modification), the legal and practical implications of such a provision would have raised major questions that are beyond the content of this blog entry.  For practitioners, this law will not only provide future guidance, but, critically, will provide for great use in ongoing divorce matters, especially where a question exists regarding whether alimony should be "permanent", or what should happen to alimony once the payor reaches the age of retirement.

To that end,  the alimony reform movement seemed to gain momentum following last year's Appellate Division decision in Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013), which is now pending before the Supreme Court of New Jersey.  One of the major issues in that case was the Appellate Court's apparent holding that a 15-year marriage is one of long-term duration meriting a permanent alimony award.  Under the new legislation, however, that would not be the case.  As discussed below, the word "permanent," in reference to alimony, will be removed from the statute, and a marriage of 15 years would no longer merit a "permanent" award.

Now for the highlights, some of which already exist as previously decided New Jersey case law, but of which are now being statutorily codified:

1. Standard of living – Neither party would have a greater entitlement to the standard of living (or a reasonably comparable standard of living) established during the marriage.

2.  Pendente Lite support payments - The nature, amount and length of pendente lite support, if any, paid during a divorce proceeding is now a statutory factor to consider when rendering an alimony award.  This bolsters the argument for those payors who pay interim support during a proceeding for months, if not years during a divorce proceeding.

3.  Weight of alimony factors – In analyzing the alimony factors, the court is required to "consider and assess evidence with respect to all relevant" factors and specify, with written findings of fact and conclusions of law, if it determined that certain factors are more or less relevant than others.  No factor shall carry more weight than any other factor unless the court finds otherwise.

4.  Duration of alimony - For any marriage of less than 20 years in duration, the total duration of alimony shall not, "except in exceptional circumstances," exceed the length of the marriage.  The length and amount of alimony shall be determined pursuant to the statutory factors, as well as "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 . . ."  A non-inclusive list of "exceptional circumstances" are set forth in the proposed law.

6.  Reimbursement alimony  - May not be modified for any reason.

7.  Permanent alimony - The word "permanent" is changed to "open durational" alimony.

8.  Retirement - The proposed law provides extensive language addressing a retirement scenario and, as a threshold matter, alimony may be modified or terminated upon the prospective or actual retirement of the obligor.  While another post will merit a more in-depth discussion on this topic, the major changes include:

  • "Full retirement age" is defined as the age at "which a person is eligible to receive full retirement benefits under the Social Security Act" – presently 67 years of age.
  • There will be a rebuttable presumption that alimony terminates once the obligor spouse reaches full retirement age (which can be set to a different date based on a showing of "good cause").  The law then provides several factors for a court to consider in determining whether the rebuttable presumption can be overcome.
  • If the rebuttable presumption is overcome based on the enunciated factors, the court is required to apply the standard alimony factors to determine whether a modification or termination of alimony is appropriate.  Critically, "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."
  • If the obligor seeks to retire before full retirement age, the obligor must prove by a preponderance of the evidence that the prospective or actual retirement is reasonable and made in good faith.  A series of factors are then set forth to determine what constitutes "reasonable and made in good faith."
  • When a retirement application is filed in cases where there is an existing final alimony order or enforceable written agreement established prior to the effective date of the new law, the obligor's reaching of full retirement age shall be deemed a good faith retirement.

9.  Modification of alimony – The law separates self-employed obligors from non-self-employed obligors.

  • As for non-self-employed obligors: a) a variety of factors are enunciated for a court's consideration, most of which are already considered as part of the process when an application to modify alimony is made pursuant to Lepis v. Lepis, 81 N.J. 281 (1980); and b) importantly, the law provides that no application shall be filed until a party has been unemployed (involuntarily), or has not been able to return to or attain employment at prior income levels – or both – for a period of 90 days.

10.  Cohabitation – Alimony may be suspended or terminated.  The term is defined as involving 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."  A variety of factors are enunciated, similar to those detailed in existing case law.  There cannot be an absence of cohabitation "solely on the grounds that the couple does not live together on a full-time basis."

These are mainly the highlights of the pending law, and much discussion will follow once the law is enacted, interpreted, relied upon, and utilized in negotiations, arguments and the like.  The changes to alimony duration, retirement and modification are undeniably significant to family law practice.  Stay tuned to this blog for more updates and analysis on the new law as they unfold.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Robert A. Epstein
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions