First, permanent alimony has been removed from our law. If you are married or in a civil union (collectively referred to as “marriage” hereafter) for more than 20 years, the court can award something called “open durational” alimony. It is not intended to be permanent and will end in most circumstances, typically at retirement, which we discuss later. Under the old law, alimony obligations really could last forever and the burden on the payor spouse to modify or terminate alimony, even at retirement, was substantial. Judges differed widely on the burden of proof needed to modify or terminate alimony.
In marriages less than 20 years, our law has been in flux for many years. Many years ago, we had an appellate case suggest that a marriage of 10 years was not short-term and an award of permanent alimony was appropriate. This led many people to argue for long-term alimony awards in relatively short marriages. More recently, our appellate division ruled that a marriage of 15 years precludes a court awarding limited duration alimony, if alimony is appropriate, meaning that if a court were to award alimony, it would be left with permanent alimony (with or lieu of rehabilitative and/or reimbursement alimony). Thanks to our new alimony law, the vast majority of people with a marriage less than 20 years need not worry about long-term alimony obligations. More specifically, the maximum length of an alimony obligation is now the length of your marriage, except in exceptional circumstances. We think it is important to note that this is not a guideline as to the length, but merely a ceiling on the length. In other words, the changes to the law do not mean that a marriage of 13 years results in an alimony award of 13 years, but that the duration can be no more than 13 years. As such, there is still plenty that parties will be unfortunately fighting about when coming up with the duration of an alimony award. You need an experienced New Jersey Divorce Attorney to ensure you are treated fairly when it comes to the duration and the amount of alimony.
The new law also places an emphasis on both parties being entitled to maintain a lifestyle comparable to the marital standard of living, with neither party having a greater entitlement to that standard. Our law has drifted away from the ability of the payor spouse to pay alimony and much more toward the needs of the payee spouse over the years. The changes to our alimony law seeks to reverse that trend.
For parties that are already divorced with alimony obligations, the new bill provides plenty of opportunities to modify or terminate alimony. In the case of retirement, there is now a rebuttable presumption that alimony shall terminate at age 67. That means anyone who is currently paying alimony can retire and petition the court to terminate alimony when they turn 67. The court must terminate alimony unless the other party shows good cause to overcome the rebuttable presumption of retirement. This is very good news for payors of alimony and is really not unfair to recipients, as everyone should be permitted to retire and enjoy the fruits of their work without the dark cloud of alimony hanging over their heads.
In the case of unemployment, we have long had inconsistent rulings from judges on what constitutes a permanent change in circumstances. The court cannot modify alimony if a payor has incurred a “temporary” change in circumstances, whether that is unemployment or a diminution in income. The key question has always been: what is temporary? The alimony statute has been amended to suggest that unemployment or reduction in income of 90 days or more should permit a payor to apply to the court for a modification of alimony. The new law specifically says that the modification or termination of alimony in the case of change in circumstances can be retroactive to the date the unemployment and reduction in income commenced and gives the court some guidance to consider temporary modifications if appropriate.
Finally, the new law sets forth factors for the court to access in determining whether alimony should be terminated or modified in the case of cohabitation. While we have had case law on cohabitation for many years, courts have been inconsistent in how facts have been reviewed when cohabitation applications have been brought before the court.
The factors the court must now consider include:
- Intertwined finances, such as joint bank accounts
- Sharing or joint responsibility for living expenses
- Recognition of the relationship in the couple’s social and family circle
- Living together, the frequency of contact, the duration of the relationship, and other indicia of a mutually supportive intimate personal relationship
- Sharing of household chores
- Whether the recipient of alimony has received an enforceable promise of support from another person (i.e., palimony)
- Any other relevant evidence. Finally, the court cannot fail to find cohabitation simply because the couple does not live together on a full-time basis
The New Jersey Alimony attorneys at Previte & Nachlinger can help you navigate this new law. If you have any questions about the new alimony law and what it means for you, please call us to schedule a complimentary consultation at (732) 479-4711.