What is "alimony" under New Jersey law?
Anytime a married couple divorces in New Jersey, the law allows the court to make an order that either grants or denies alimony. Alimony (also called "spousal support" or "maintenance") is a form of financial support paid by one spouse to another, to ensure that both spouses have a roughly equal financial standard of living that is as close as possible to the standard of living they enjoyed during the marriage.
New Jersey case law says that the main purpose of alimony is to allow a spouse who was financially dependent to share in the total assets that were accumulated during the marriage. This is because both spouses are presumed (a presumption is a legal assumption) to have made contributions to the total marital estate.
However, no one has an absolute right to alimony. Spouses requesting alimony must prove (to a judge's satisfaction) that they need financial support.
Are there different kinds of alimony?
There are several types of alimony in New Jersey as follows:
- limited duration alimony - consists of payments for a specified period of time and is intended to help the needier spouse recover financially from the divorce
- reimbursement alimony - is ordered to provide fair and just compensation in situations where one spouse provided financial support during the marriage, while the other obtained a degree in a professional program, such as law or medicine, and
- rehabilitative alimony - financial support that enables a spouse without training or education to obtain the schooling and credentials necessary to become self-sufficient.
This article will focus on the final kind of alimony—permanent alimony. "Permanent alimony" is theoretically a financial award that goes on indefinitely, whereas limited duration, reimbursement, and rehabilitative alimony all have definite end dates.
How does a New Jersey judge decide whether to award permanent alimony?
The court will set a hearing on permanent alimony, where both sides will have the opportunity to present testimony and evidence. The judge will then apply all of the following factors to the testimony and evidence to decide whether to award permanent alimony, and in what amount:
- the actual need and ability of the parties to pay
- the duration of the marriage or civil union (which is a legal contract, roughly equivalent to marriage, between same-sex partners in New Jersey)
- the age, physical and emotional health of the spouses
- the standard of living established in the marriage or civil union (this means, the way the parties actually lived), and the likelihood that each party can maintain a reasonably comparable standard of living
- the earning capacities, educational levels, vocational skills, and employability of the parties
- the length of absence from the job market of the party seeking alimony
- any parental responsibilities for children of the marriage or union
- the time and expense necessary for the spouse who's seeking alimony to obtain enough training and education to become gainfully employed and acquire assets and income independently
- 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 and educational opportunities
- the equitable (fair and reasonable) distribution of property ordered in the divorce and any payouts on equitable distribution, directly or indirectly, out of current income, provided that this consideration is just
- the income available to either party through investment of any assets
- the tax treatment and consequences to both parties if alimony was awarded, including the designation of all or a portion of the payment as a non-taxable payment, and
- any other factors the court deems relevant.
Whenever a spouse requests permanent alimony, the court has to make "specific findings on the evidence" on these 13 factors. This means that the judge has to issue a written order and explain how the evidence affected each factor. The court also has to address the dependent spouse's needs, the dependent spouse's ability to satisfy those needs, and the paying spouse's ability to maintain the dependent spouse at the previous standard of living.
Who is likely to get permanent alimony?
Permanent alimony is most commonly awarded in situations where the parties were married for a long time before the divorce. Sometimes, it's awarded in shorter-term marriages, but only if there are extenuating circumstances, like the dependent spouse becoming disabled.
Typically, permanent alimony is awarded where one spouse was financially dependent on the other during the marriage. For example, in one common scenario, one spouse stays home to raise the children while the other spouse enters the workforce, becomes financially successful, and ultimately provides the family's sole financial support. When that happens, the spouse who stayed home for many years to raise the children and maintain the household might be awarded permanent alimony.
Can I ask a court to convert my temporary award to permanent alimony?
Yes. If you're the dependent or supported spouse (meaning, a spouse who financially depends on the other spouse), you should know that a string of New Jersey court cases authorize the conversion of rehabilitative and limited duration alimony to permanent alimony. What each of these cases had in common was that the dependent spouse didn't have any reasonable prospects of becoming self-sufficient enough to achieve the economic standard of living the parties enjoyed while they were married.
If you've been awarded rehabilitative alimony and you think you should have been given permanent alimony, you should speak with an experienced family law attorney who can help you file your application (legal paperwork) to convert that award to permanent alimony.
Is it possible to modify an award of permanent alimony?
Yes. It is possible to change almost any financial award contained in a court order. You'll have to show that there has been a change of circumstances, which makes the original award unfair or unreasonable.
If you ask the court to change an award of permanent alimony, you should supply the judge with documentary evidence—receipts, statements, tax returns, and so forth—to support your position.
It's important to remember that if alimony was awarded because you and your spouse agreed to it earlier, the court will have to carefully consider that fact.
This is a complicated topic. To learn more, please read Nolo's Essential Guide to Divorce, by Emily Doskow (Nolo).