The new alimony law that was recently passed on September 10, 2014, changed one of the types of alimony from “permanent” to “open durational.” It was really just a change in semantics. Permanent alimony was never meant to be “lifetime” alimony as many clients called it. Under our previous law, permanent alimony could have been modified upon a substantial change in circumstances, such as disability, unemployment, retirement, or a change in need by the payee or change in ability to pay by the payor. Open durational alimony, which has an open term until the court terminates it or the parties agree to terminate it, generally applies to marriages over 20 years in length. This type of alimony can also be modified (reduced or terminated) upon a substantial change in circumstances.

What the new law does give us is some guidance when dealing with substantial changes in circumstances. Prior to the new law’s enactment, we only had case law to help with modification applications.

For example, retirement is a substantial change in circumstance for which modification of alimony would have been considered under case law. Under the new alimony statute, there is a rebuttable presumption that alimony shall terminate upon the payor spouse obtaining full retirement age, which is Social Security retirement age. The law also provides that the court may set a different alimony termination date if the rebuttable presumption is overcome. The factors to consider in rebutting the presumption are as follows:

  1. The ages of the parties at the time of the application for retirement.
  2. The ages of the parties at the time of the marriage or civil union and their ages at the time of entry of the alimony award.
  3. The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union.
  4. Whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award.
  5. The duration or amount of alimony already paid.
  6. The health of the parties at the time of the retirement application.
  7. Assets of the parties at the time of the retirement application.
  8. Whether the recipient has reached full retirement age as defined in this section.
  9. Sources of income, both earned and unearned, of the parties.
  10. The ability of the recipient to have saved adequately for retirement.
  11. Any other factors that the court may deem relevant.

If the paying spouse retires prior to attaining full retirement age, then he/she has the burden of demonstrating that the actual retirement is reasonable and made in good faith.

Other blogs have been posted to this site on the new alimony law and how it effects other changes in circumstances such as cohabitation and unemployment.

After a protracted test of wills between alimony reformers and traditionalists, a new alimony statute was signed into law by Governor Christie on September 10, 2014. The new law, which is immediately effective, will serve to meet the competing needs of divorcing couples by balancing increased uniformity with judicial discretion in terms of alimony awards.

The new law deals with four major areas, each of which will be explored in detail by our family law attorneys in forthcoming blogs on this site. Although the more radical reformers sought explicit provisions with respect to the amount and duration of alimony, the law does not impose such templates but leaves the amount and to a lesser extent the length of alimony subject to legal principles which have guided our courts for decades. The new law also clarifies such vexing issues as the impact of unemployment or retirement and the consequences of an alimony recipient’s cohabitation other than by remarriage. Stay tuned to this site for further information concerning this significant legal development which will impact divorcing and divorced persons throughout New Jersey.

I recently concluded a lengthy divorce trial involving custody and parenting time, division of substantial assets, alimony, child support and other disputed issues. After a series of unproductive settlement efforts, the parties acknowledged that it would be necessary for a Judge to hear the facts, apply the law and determine the outcome. What is the point of this story?

Quite simply, I believe that there are certain cases which must be resolved in the crucible of the courtroom. Unfortunately, divorce trials are misrepresented on so-called television “reality shows” as shouting matches where the “Judge” functions as a smart aleck entertainer. Such outlandish portrayals do not represent divorce trials as I know them to exist. When settlement discussions are unproductive, a trial is where your client can present his or her position and call witnesses, where credibility is determined and where thorough preparation is rewarded. While settling should be your first option, don’t settle if your attorney believes that a trial is necessary to achieve the right outcome. Finally, attorneys know which colleagues avoid the courtroom when they shouldn’t. Make sure yours doesn’t. 

Both the New Jersey Assembly and Senate passed an alimony reform bill that has been in the works for two and a half years. The bill is currently awaiting Gov. Christie’s signature.

The proposed law eliminates the term "permanent" alimony and substitutes "open durational" alimony. For any marriage or civil union which is less than 20 years in length, the total years of alimony shall not exceed the length of the marriage unless there are exceptional circumstances. All of the statutory factors which have previously been in existence will still be considered in making any alimony determination.

The bill sets forth a list of exceptional circumstances which may require an adjustment to the duration.

  1. The ages of the parties at the time of the marriage or civil union and at the time of the alimony award;
  2. The degree and duration of the dependency of one party on the other party during the marriage or civil union;
  3. Whether a spouse or partner has a chronic illness or unusual health circumstance;
  4. Whether a spouse or partner has given up a career or a career opportunity or otherwise supported the career of the other spouse or partner;
  5. Whether a spouse or partner has received a disproportionate share of the marital estate;
  6. The impact of the marriage or civil union on either party’s ability to become self-supporting, including but not limited to either party’s responsibility as primary caretaker of a child;
  7. Tax considerations of either party;
  8. Any other factor or circumstances that the court deems equitable, relevant and material.

The bill also allows for modification or termination of alimony upon retirement at full retirement age of the payor; however, the rebuttable presumption in favor of alimony termination at that time may be overcome for good cause.

In the event of the loss of employment, the Court may consider the application for a modification of alimony if the party has been unemployed for 90 days.

Finally, the proposed law states that alimony may be suspended or terminated if the payee spouse cohabits with another person. Cohabitation is defined as "a mutually supportive, intimate, personal relationship in which a couple has undertaken duties and privileges which are commonly associated with marriage or civil union but does not necessarily maintain a single common household."          

It is anticipated that Gov. Christie will sign this bill into law. 

The responsibility of college education expenses between divorced parents is often a source of conflict, and many times the parties end up back in court even though they have been divorced for years. Although New Jersey law obligates divorced parents to contribute to their children’s college education expenses, a recent lower court case dealt with the issue of a parent’s responsibility if the child wants nothing to do with that parent.

In that case, the judge ruled that a college age student, whose divorced father had an obligation to pay toward his son’s college education expenses, could be compelled to attend counseling sessions with his father as a condition to receiving financial assistance.

Under the father and mother’s Marital Settlement Agreement, the father and son were to attend therapy sessions together given their discord. The father wanted to go to joint therapy sessions with his son, but the son refused. The Court recognized that the parties’ son, while still legally unemancipated, was an adult, and he should be held to a "different level of maturity, responsibility and accountability for his current choices and actions. . ."

While the Court stated that it could not force the son to go to counseling with his father, the Court could consider his refusal as a factor in determining whether the father had an ongoing obligation to contribute to his son’s college education expenses.

As in any college contribution case, many factors come into play before a Court will determine a parent’s obligation. Please note that the child’s relationship with the parent is just one factor.

In June, both the New Jersey Senate and Assembly passed the New Jersey Family Collaborative Law Act, which is now awaiting Gov. Christie’s signature.

I have written much about the benefits of Collaborative Divorce in articles and blogs contained on this website. The Act proscribes the statutory requirements for a collaborative divorce, establishes statutory privilege for members of the collaborative team, provides divorcing couples with an alternative to litigation and mediation and codifies the disqualification clause in collaborative divorce (if a client decides to litigate after beginning with the collaborative process, his/her attorney is disqualified from representation during the litigation process).

As soon as Gov. Christie signs the bill into law, I will write about the specifics of the Act.

Trials held under the New Jersey Prevention of Domestic Violence Act (PDVA) are some of the most contentious in the Courthouse. The consequences of being found guilty of domestic violence are serious and the violation of a Final Restraining Order (FRO) will trigger arrest and institution of criminal proceedings. Despite such potential results, New Jersey courts have consistently held that a party in a domestic violence case does not have the right to appointed counsel if he or she cannot afford to retain a lawyer and that the court has no obligation to inform the party that he or she has the right to an attorney. The premise for this position is that unlike the criminal statutes, which are punitive in nature, the PDVA is designed to “remediate behavior”. This distinction was recently addressed in A.M v. M.M. (names redacted by the court) decided by the Appellate Division on June 16, 2014. In this case, M.M. challenged the issuance of an FRO against him based on the court’s alleged failure to advise him of his right to counsel and its further alleged failure to determine whether he voluntarily waived his right to assistance of counsel. The appellate court affirmed the trial judge’s rulings on the premise described above. The take-away is that no matter how serious the consequences of an FRO for the defendant (or the consequences of the denial of an FRO for the victim), neither party should expect a change in New Jersey law in the foreseeable future.

On May 27, 2014, Governor Chris Christie signed into law legislation that will allow adoptees in New Jersey access to their birth certificates beginning January 1, 2017 (Adoption records have been sealed since 1940).

From now through December 31, 2016, birth parents will have the opportunity to notify the State Department of Health as to whether they would prefer (1) full contact with their child, (2) contact only through an intermediary, or (3) have their names redacted from the birth certificate so there could be no contact.

If the birth parents choose to have their names redacted, they are still required to provide their family medical history, although all personal identifying information will be removed. This information is to be provided every 10 years until age 40 and once every 5 years, thereafter.

For adoptions finalized after August 1, 2015, birth certificates will be available to adoptees, but birth parents will complete a form indicating their preference regarding contact/no contact.

The purpose of this new law is to allow adoptees to not only meet their birth parents and possible siblings, but to give them information about their biological family’s medical history.

Most Marital Settlement Agreements (a.k.a. Property Settlement Agreements) provide a mechanism for divorced parents to claim their children as tax dependency exemptions (TDE’s) on their federal and state income tax returns. Agreements silent on the subject default to the custodial parent’s annual recurring right to do so. Assuming that an MSA permits a non-custodial parent to claim a child as a TDE, it is important to recognize that since 2009, the Internal Revenue Service requires the non-custodial parent to obtain a signed IRS Form 8332 from the custodial parent and attach it to his/her tax return even if the MSA is clear regarding the parties’ intentions. Agreements entered into before 2009 do not require Form 8332 language since the IRS will recognize the Agreement as sufficient. Further information can be obtained at IRS.gov by clicking here. In this area and others, it is essential that an MSA be drafted and reviewed by skilled family law attorneys to avoid future problems of interpretation or enforcement.

A divorced parent’s legal obligation to contribute toward a child’s college expenses has been a long standing subject in New Jersey law. Unlike many other states, New Jersey requires a divorced parent to pay for his/her child’s college expenses if the child is a full time student attending college on a consecutive semester basis. The leading cases in this area are Newburgh v. Arrigo, 88 N.J 529 (1982) and Gac v. Gac, 186 N.J. 535 (2006). In Newburgh, the New Jersey Supreme Court established twelve factors a trial court must consider in evaluating a divorced parent’s college contribution which have been the subject of previous postings on this site. In Gac, the Court stated that a parent seeking contribution a child’s college expenses from his or her former spouse “should, at a minimum, initiate the application… before the expenses are incurred [and that] the failure to do so will weigh heavily against the grant of a future application.”

It is against this backdrop that a New Jersey appeals court decided the case of Martin v. Martin on May 23, 2014. The case involved Ms. Martin’s appeal from a trial court ruling which denied her application to compel her former husband to contribute to the college expenses of their daughter because Ms. Martin delayed making her application until her daughter was in her third semester of college. The Appellate Division reversed the trial court’s ruling and remanded the case for a full evidentiary hearing, finding that the trial court’s interpretation of Gac had been “very restricted without recognizing the equitable considerations that underlie that decision” [and that] “Gac does not establish a bright line rule permitting automatic denial whenever a request has been filed after the educational expense has been incurred. The Court admonished the trial court for having failed to conduct a hearing at which it could “flush out all the information necessary to properly and fairly evaluate the Newburgh factors”. As a result, Mr. Martin will likely be liable for a share of his daughter’s past as well as future college expenses. Beyond the impact on the parties and future cases, the lesson of Martin is that family courts are courts of equity where principles of fairness will significantly impact outcomes.