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Alimony Policy - The Missing Element
There is no question that determining both the length and amount of alimony in New Jersey are fact-sensitive exercises requiring the analysis of 12 specific statutory factors with a 13th catchall factor. Any alimony analysis should not be relegated to formulaic guidelines, which by their very nature will only consider a few factors such as the income of the parties and the length of the marriage. However, the fact that we may not wish to adopt guidelines or a formula approach does not mean that our law of alimony cannot be improved by providing judges, practitioners, and litigants with greater guidance as to certain elements of the law such as duration and modification based upon changed circumstances, cohabitation and retirement. These concepts were more fully detailed in my column that appeared within this publication in June, 2012 . In that column, I proposed that enhanced guidance will provide greater predictability and consistency in alimony awards. These improvements in turn will also provide for less costly litigation and more expeditious resolutions. I submit herein that another way to provide all concerned with greater guidance is to refine and clearly express the public policy underpinning Permanent Alimony.
What has happened in New Jersey as to alimony obligations has become somewhat controversial either to the supporting spouse or the dependent spouse, especially with regard to the duration of some awards and post-divorce applications to reduce alimony due to changed circumstances such as unemployment, cohabitation and retirement .
For example, standards for reviewing such applications must be revised to recognize that even if unemployment does not last for an appreciable period of time, it may warrant review and relief from an alimony obligation.
Moreover, the standard for relief from alimony payments in the event of cohabitation by the dependent spouse needs to be revised, and a more expansive definition of cohabitation warranting relief must be devised. It is unfair to the former spouse that a dependent spouse and a paramour, living as if they are married yet acting to keep their finances separate can defeat a showing of an economic connection that would lead to a modification of the support obligation. Most importantly, the law must recognize that the world has changed since principles for modification of alimony awards were initially established decades ago. So much of what we rely upon in the doctrine of changed circumstances was created in a world where fewer people cohabited, unemployment was the exception because people had job security, and life expectancy (along with work life expectancy) were significantly lesser than they are today. The problem with the current alimony reform movement is that the reformers equate modernization of the law with a wholesale abandonment of fairness instead of a case by case analysis.
One reason for any potential problems with our current alimony law may be an over-emphasis on one factor when awarding alimony; i.e., the requirement to maintain the marital lifestyle. Specifically, when assessing statutory factors in connection with awards, too much emphasis is being placed on marital life style even though marital life style is one of many factors to be considered. Sometimes it is forgotten that the marital life style is an entitlement to be enjoyed by both spouses. If circumstances do not allow for maintenance of the marital life style by both spouses, then both must be equitably impacted. The over-emphasis on marital lifestyle when awarding alimony is drawn from case law, not the statute. In Crews v. Crews, our Supreme Court "reaffirm[ed] the Lepis v. Lepis principle that the goal of a proper alimony award is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage." This obligation of the supporting spouse has been held as recognizing “a continuing responsibility to contribute to the maintenance of the dependent spouse at the standard of living formerly shared.”' However, the quintessential question raised by this column is whether this judicially- imposed continuing responsibility of the supporting spouse to maintain the dependent spouse at a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse is indeed the proper policy for determining the duration and amount of alimony.
In the recent past, our State’s Legislature reacted to judicial decrees in ways that family law practitioners did not see as fair. Recently, the Legislature responded to the judicial enforcement of oral or conduct-based promises to support in the palimony/living together cases by amending the Statute of Frauds. In order to prevent a potentially harsh outcome in reviewing alimony, a proposal to the Legislature or new case law focusing on different factors may avoid the imposition of alimony guidelines such as are currently being considered. Therefore, prompt attention or reconsideration of the current lifestyle based policy behind alimony is required.
There are various reasons we could say that Permanent Alimony or Limited Duration Alimony are awarded. It can be argued that one or more of the following reasons might lend support to an award of either Permanent or Limited Duration Alimony:
This list is not exhaustive. There is no doubt that other reasons could support an alimony award. One thing is clear; the bench and bar must know the purpose or policy behind alimony before applying the facts of the case to each statutory factor.
It is this writer’s opinion that the following policies for awarding alimony most fairly represent the current social and economic realities of society and create an equitable outcome when allocating resources and responsibilities between individuals:
Before judges, attorneys and litigants can proceed to apply the statutory factors, the reason why alimony in any particular case is sought must be determined. With these policies firmly stated and applied to the facts of a particular case, the court and counsel can then apply the statutory factors in the appropriate context.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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