Alimony NJ Statutory FAQ's

By Honorable Robert Fall

“Alimony” represents payments for the support and maintenance of a spouse, either by lump sum or on a continuing basis. Alimony is paid by the “supporting spouse” to the “dependent spouse”. The general rule is that a spouse is dependent when he or she makes less money than the other spouse.

 

 

N.J.S.A. 2A:34-23.  Alimony; maintenance

 

Pending any matrimonial action or action for dissolution of a civil union in this State or elsewhere, OR

 

After judgment of divorce or dissolution or maintenance, whether obtained in this State or elsewhere,

 

The court may make such order as to alimony . . . as:

 

-the circumstances of the parties, and

 

-the nature of the case

 

shall render fit, reasonable and just, and

 

require reasonable security for the due observance

    of such orders, including, but not limited to, the

creation of trusts or other security devices, to

assure payment of reasonably foreseeable medical

and educational expenses.

 

Upon neglect or refusal to give such reasonable

security or upon default in complying with any such

order, the court may award and issue process for the

immediate sequestration of the personal estate, and

the rents and profits of the real estate of the party

so charged, and appoint a receiver thereof, and cause

such personal estate . . . to be applied toward such

alimony . . . as to the said court shall from time to

time seem reasonable and just; or the performance of

said orders may be enforced by other ways according

to the practice of the court.

 

Orders so made may be revised and altered by the court from time to time as circumstances may require.

 

The court may order one party to pay a retainer on behalf of the other for expert and legal services when the respective financial circumstances of the parties make the award reasonable and just.

 

In considering an application, the court shall review:

 

-the financial capacity of each party to conduct

the litigation; and

 

-the criteria for award of counsel fees set by

court rule.

 

Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issues then before the court, and shall consider:

 

-the factors set forth in the court rule on counsel fees;

 

-the financial circumstances of the parties; and

 

-the good or bad faith of either party.

b. … the court may award one or more of the following types of alimony:

 

-permanent alimony;

 

-rehabilitative alimony;

 

-limited duration alimony; or

 

-reimbursement alimony

 

to either party.

 

In doing so, the court shall consider, but not be limited to, the following factors:

 

(1)The actual need and ability of the parties to pay;

 

(2)The duration of the marriage or civil union;

 

(3)The age, physical and emotional health of the parties;

 

(4)The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

 

(5)The earning capacities, educational levels, vocational skills, and employability of the parties;

 

(6)The length of absence from the job market of the party seeking maintenance;

 

(7)The parental responsibilities for the children;

 

(8)The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

 

(9)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 or educational opportunities;

 

(10)The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;

 

(11)The income available to either party through investment of any assets held by that party;

 

(12)The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and

 

(13) Any other factors which the court may deem relevant

 

-When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.

 

c.In any case where there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the above factors.

 

If the court determines an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor.

 

The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement.  In doing so the court shall consider and make specific findings on the evidence about the factorsset forth above.

 

The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.

 

Limited duration alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.

 

In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.

 

d.Rehabilitative alimony shall be awarded based on a plan in which the payee shows:

 

-the scope of rehabilitation,

 

-the steps to be taken, and

 

-the time frame, including a period of employment

during which rehabilitation will occur.

 

Rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award.

 

This section is not intended to preclude a court from modifying permanent alimony awards based upon the law.

 

e.Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education.

 

f.Except as provided in subsection i., nothing in this section shall be construed to limit the court's authority to award permanent alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case.

 

g. In all actions for divorce or dissolution other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.  In all actions for divorce, dissolution of civil union, divorce from bed and board, or legal separation from a partner in a civil union couple where judgment is granted on the ground of institutionalization for mental illness the court may consider the possible burden upon the taxpayers of the State as well as the ability of the party to pay in determining an amount of maintenance to be awarded.

 

h. Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution.  The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party.

N.J.S.A.2A:34-23d. Maintenance of certain insurance coverage in action for divorce or dissolution.

 

a.Upon filing of a complaint for an action for divorce, dissolution, nullity or separate maintenance, where the custody, visitation or support of a minor child is an issue, the party who has maintained all existing insurance coverage or coverage traditionally maintained during the marriage or civil union, including but not limited to, all health, disability, home or life insurance, shall continue to maintain or continue to share in the cost of maintaining the coverage.

 

b. If a party who has maintained the existing insurance coverage or has shared in the cost of maintaining the coverage has had a voluntary or involuntary change in employment status, which may cause the existing insurance coverage to terminate, then that party shall notify the other party that it may be necessary to reallocate the financial responsibilities of maintaining the coverage.

 

c. Upon receipt of this notice, the party may petition the court to reallocate financial responsibilities.

 

d. The court may take any action it deems appropriate to reallocate financial responsibilities including but not limited to ordering a party to obtain comparable coverage or releasing a party from the obligation or any other order.

N.J.S.A.2A:34-24. Lien, security.

 

  If an obligor shall abandon an obligee or separate from the obligee and refuse or neglect to maintain and provide for the obligee, the court may order suitable support and maintenance to be paid and provided by the obligor for the obligee and their children in the manner provided in N.J.S. 2A:34-23, as applicable.  If the obligor fails to comply with the order of the court, entered in New Jersey or another jurisdiction, the court may impose a lien against the real and personal property of the obligor who lives in or owns property in New Jersey to secure payment of the overdue support and for such time as the nature of the case and circumstances of the parties render suitable and proper; such lien shall have priority from the time of the proper filing or recording.

 

If the circumstances warrant, for such overdue support or maintenance, upon reasonable notice, the court may compel the obligor to give reasonable security, post a bond, or other guarantee for such overdue support and for present and future support and maintenance and may, from time to time, make further orders touching the same as shall be just and equitable and enforce such judgment and orders in the manner provided in N.J.S. 2A:34-23.

N.J.S.A.2A:34-24.1. Court-ordered support, maintenance.

 

  When a spouse or partner in a civil union couple has secured a judgment or decree of divorce, whether absolute or from bed and board, dissolution of a civil union, legal separation from a partner in a civil union couple, or of nullity or annulment of marriage or civil union, in an action whether brought in this State or elsewhere, wherein jurisdiction over the person of the other spouse or the other partner in a civil union couple was not obtained, the court may make the same orders and judgments touching the suitable support and maintenance to be paid and provided by the spouse or partner in a civil union couple, or to be made out of the spouse's or partner's property, for the other spouse or partner and their children, or any of them, by their marriage or civil union and for such time, as the nature of the case and circumstances of the parties render suitable and proper, pursuant to the provisions of chapter 34 of Title 2A of the New Jersey Statutes notwithstanding the securing of such judgment or decree.

N.J.S.A.2A:34-25. Termination of alimony.

 

  If after the judgment of divorce or dissolution a former spouse shall remarry or a former partner shall enter into a new civil union, permanent and limited duration alimony shall terminate as of the date of remarriage or new civil union except that any arrearages that have accrued prior to the date of remarriage or new civil union shall not be vacated or annulled. A former spouse or former partner in a civil union couple who remarries or enters into a new civil union shall promptly so inform the spouse or partner paying permanent or limited duration alimony as well as the collecting agency, if any.  The court may order such alimony recipient who fails to comply with the notification provision of this act to pay any reasonable attorney fees and court costs incurred by the recipient's former spouse or partner as a result of such non-compliance.

 

The remarriage or establishment of a new civil union of a former spouse or partner receiving rehabilitative or reimbursement alimony shall not be cause for termination of such alimony by the court unless the court finds that the circumstances upon which the award was based have not occurred or unless the payer spouse or partner demonstrates an agreement or good cause to the contrary.

 

Alimony shall terminate upon the death of the payer spouse or partner, except that any arrearages that have accrued prior to the date of the payer spouse's or partner's death shall not be vacated or annulled.

 

Nothing in this act shall be construed to prohibit a court from ordering either spouse or partner to maintain life insurance for the protection of the former spouse, partner, or the children of the marriage or civil union in the event of the payer spouse's or partner's death.