In divorce cases where alimony is an issue, it is not merely an issue of amount. The length of time must also be decided. Prior to 1999, there were only two types of alimony pursuant to legislation B permanent and rehabilitative. The law was amended in September, 1999, to add limited duration alimony and reimbursement alimony.
By statutorily allowing limited duration alimony (LDA), or alimony for a term of years, the legislature gave to the courts the authority to do what attorneys had been doing for their clients all along through negotiated agreements. This flexibility has been helpful to divorce litigants, since not all cases warrant permanent or rehabilitative alimony.
However, what is the line of demarcation between an award of limited duration alimony and permanent alimony? Unfortunately, there is no bright line, and the ultimate resolution will depend on the facts of each case, as well as the Judge’s perspective.
In attempting to resolve this issue, case law is instructive. Several reported decisions by the New Jersey Appellate Division have provided some guidance in distinguishing between the two types of alimony.
Limited duration alimony is available to a dependent spouse who made contributions to the marriage, if the marriage is of short duration. Permanent alimony is awarded after a lengthy marriage, in recognition of prolonged economic dependence and sustained contribution to a marital enterprise.
While all the statutory factors in determining alimony must be considered (such as need of the party, ability to pay, health of the parties, standard of living during the marriage, etc.), the duration of the marriage is the defining distinction between whether permanent or limited duration alimony is awarded. Yet, the question remains, what is considered a short term marriage, and what is a long term marriage? And, what do we do about intermediate length marriages?
While not defining what a short-term marriage is, the Appellate Division in Cox v. Cox stated that a 22 year marriage is a long term marriage, and therefore reversed the Lower Court’s award of limited duration alimony. In Hughes v. Hughes, the parties were married for 10 years. The Lower Court awarded rehabilitative alimony to the Wife (LDA was not yet statutorily authorized), placing great emphasis on the length of the marriage. The Appellate Court disagreed that a 10 year marriage should be considered short-term stating that "By today’s standards, it is not." The Court went on to state that because the marriage was of intermediate length, the Wife should receive permanent alimony.
In a recent Appellate Court case, Valente v. Valente (decided in January, 2009), the parties were married for close to 12 years and had 3 children. The Lower Court held that the Wife was entitled to permanent alimony. The Appellate Division, however, found that limited duration alimony was appropriate in this case, citing the fact that the marriage was of intermediate length. The Wife’s age (40), education (high school diploma), and the age of the children would allow her to obtain a job within a reasonable time.
The Court noted that at the end of the term, the Wife could seek permanent alimony or an extension of limited duration alimony if her earnings were insufficient to maintain her lifestyle without alimony. This holding is perplexing given that the statute on limited duration alimony specifically states that the Court may modify the amount of the LDA award, but not the length of the term, except in unusual circumstances. Yet, the Appellate Division seems to be saying that any circumstances which would support the fact that the Wife cannot earn an income to support her marital lifestyle would be sufficient.
In another recent case, the Appellate Court had before it the "unusual circumstances," which would give rise to an extension of LDA. The parties were married for 7 years and had 2 children. Both were lawyers. The Husband had an active practice, and the Wife did not, because of her parenting obligations. The parties had agreed to LDA for a term of 4 years. After the divorce, one of the children was diagnosed with psychological disorders.
The Lower Court denied the Wife’s motion for an extension or increase in alimony. The Appellate Division, however, honed in on the heightened standard – unusual circumstances – for extending the term of LDA and agreed that the Wife had made a sufficient showing due to her son=s current mental health condition.
Given the above, we can glean from case law that marriages between 10 and 12 years are of intermediate length, and marriages of over 20 years are considered long term marriages. Although we do not know whether long-term starts at 13 years, or some other number, we do know that permanent alimony will be awarded in a long term marriage, and LDA will be awarded in short term marriages. We can also draw from the Valente case, that LDA is appropriate for marriages of intermediate length, and in appropriate circumstances, it will be extended.