This is the second part to the article Understanding and Calculating Alimony in New Jersey, which gives an overview of the four types of alimony, the general factors a court uses to determine a fair payment, and whether a spouse can either modify or terminate these payments. This article tells you more about how marital fault and non- or under-employment affect alimony payments, and when you can justify a change in alimony.
Alimony Payments are not Based on Marital Fault
Although a court relies on a set of factors – like the spouses’ ages and earning capacity, among other things – to determine alimony payments, the law recognizes that every marriage (or civil union) is different. As such, a court can consider any other relevant facts or circumstances when calculating a fair payment. Examples include tax consequences, the equitable distribution of marital property, and even investments that may mature at a later time.
A noticeable gap in a court’s analysis of fair alimony payments is the reason why the marriage failed (called marital fault). Marital fault does not matter for alimony purposes. In other words, even a spouse who behaved badly during marriage – had an affair, for example – can still get alimony. And, the fact of the affair will not count against the unfaithful spouse unless it is economically relevant (such as where one spouse spent marital savings on a lover).
In the rare case where marital fault caused economic damage, then alimony could be either increased or reduced based on that negative impact. Also, by law, a court can’t award alimony to a spouse who commits a serious crime like murder or aggravated assault against a family member during the marriage or civil union. Likewise, a spouse who plans to kill the other – even if those plans fail – will not receive alimony. In any event, a court may deny alimony in circumstances where one spouse’s bad act makes it unjust to force the other to maintain economic ties.
When a Spouse Won’t Work
A spouse can’t avoid alimony responsibilities by voluntarily working less or not working at all. This is because a court may "impute" income, meaning, assign an amount that the deadbeat spouse should be making, based in part on past earnings. On the other hand, a court can’t impute income where the supporting spouse becomes disabled or loses a job involuntarily – a lay-off, for example.
This rule is not meant to punish a dependent spouse who perhaps gave up a career to support the marriage or raise children. While income is not imputed to the dependent spouse, a court will evaluate this spouse’s earning capacity when deciding what kind of alimony – temporary, permanent, rehabilitative, or reimbursement – is due and how long payments should last. In this way, the law also encourages the dependent spouse to find work leading to eventual self-sufficiency.
Changing the Amount of Alimony
While spouses can’t shirk their alimony responsibilities, they can reduce or increase the amount of alimony due, but only if a court approves it. Even if the spouses resolved the issue of alimony by separation agreement, only a court can order a changed amount. Whether a court actually modifies payments depends on how a spouse’s economic circumstances have changed and the type of alimony already awarded.
Generally, a court reviews both spouses’ finances when deciding whether to modify the amount of alimony. A reduction or increase in payments is justified when there has been a substantial change in circumstance, such as the loss of a job. Some other reasons for modification include an increase in the cost of living, illness, disability, or when the dependent spouse moves in with a significant other. Also, if the type of alimony is limited duration or rehabilitative, then a court could modify payments where an expected event -- like a spouse's completion of an educational program -- has not yet occurred.
When the supporting spouse seeks to reduce payments, this spouse has the burden of proving that the lost job, for example, is a substantial change in circumstances that makes the current payment amount unreasonable. Generally, this means showing a history of earnings and the inability to make payments by other means. If, on the other hand, the dependent spouse wants to increase payments, then this spouse must prove changed circumstances, like an increase in the cost of living, that make it difficult to maintain a certain standard of living comparable to the one enjoyed during marriage.
