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Archive for June, 2014

UNDERSTANDING ALIMONY FROM THE PERSPECTIVE OF A NJ MIDDLESEX COUNTY DIVORCE LAWYER

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As a NJ Middlesex County Divorce Lawyer, I deal with questions regarding alimony in most of my cases. The current New Jersey alimony law has four types of alimony:

  1. permanentNew Jersey marriage divorce and alimony
  2. limited duration
  3. rehabilitative
  4. reimbursement

Types of Alimony and Factors

Permanent alimony is appropriate where a marriage has lasted for a long duration.

Limited duration alimony is awarded based on the financial need and for as long as it takes the requesting spouse to become self-supporting.

Rehabilitative alimony is awarded to help the requesting spouse to self-support through training and education.

Reimbursement alimony compensates a spouse that has supported the other spouse through advanced education.

The Court will examine several factors when awarding alimony, including:

  1. Actual need of the spouse requesting alimony and the ability of the payor to pay
  2. Duration of the marriage
  3. Age, physical and emotional health of the parties
  4. Standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living
  5. Earning capacities, educational levels, vocational skills, and employability of the parties
  6. Length of absence from the job market of the party seeking maintenance
  7. Parental responsibilities for the children
  8. 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. History of the financial or non-financial contributions to the marriage by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities
  10. 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. Income available to either party through investment of any assets held by that party
  12. 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
  13. Any other factors which the court may deem relevantnj alimony law

Although the list of factors are applied in all cases, the most often used formula, as a starting point, is to take a third of the difference between the parties income and pay that amount for half of the duration of the marriage, that is, if the marriage lasted less than 15 years. Once the marriage has lasted longer than 15 years, permanent alimony may apply.

Many individuals make the mistake in associating equitable distribution of retirement benefits as alimony and it is not. Retirement benefits are usually treated as an asset for purposes of equitable distribution.

Modification and Termination of Alimony

The court may change or terminate alimony orders if there is a change in circumstances. The current law has been questioned due to the uncertainty of the outcome of the case where a spouse goes to court to modify or terminate their alimony obligation. A poll was taken at nj.com whether permanent alimony should be eliminated. According to NJ.com, 91% said yes (3,180 votes) and 9% said no (313 votes). The answer is never that straight forward since each case is extremely unique.

It is clear that most of New Jersey residents are unhappy with the current NJ alimony law. A significant amount of individuals wrote to the NJalimonyreform.org regarding their alimony horror stories. Each story describes the unfairness the payor feels when he or she is obligated to continue paying after the payor has lost their job, becomes ill, or retires.  Click here to read the full story “The Personal Horror Stories of Marriage and Divorce in New Jersey”.

New Jersey lawmakers are working on changing the NJ alimony laws. Some of the possible changes include specific requirements to modify or terminate alimony payments when the payor retires or loses their job. Another proposed change is to eliminate the phrase “permanent alimony” and replace it with “alimony of indefinite term” to establish that alimony is modifiable when there is a change in circumstances. It has also been proposed to eliminate permanent alimony all together.

Until the change in NJ alimony law takes place, it is important to cover retirement, health issues, loss of employment and any other possible changes to the payor’s circumstances in the Settlement Agreement.