Alimony is a court ordered payment for a spouse after a couple has been divorced. Alimony is paid by the “supporting spouse” to the “dependent spouse” in either a lump sum payment or continuing installments. The supporting spouse is whichever spouse makes more money and supports the family. The dependent spouse can either be a husband or wife, as long as they rely on the other’s income to live.
Divorced couples have the power to determine alimony payments amongst themselves without going to court. However, if a couple cannot come to a reasonable conclusion with alimony payments, they can submit the issue for a decision in court. Regardless of whether the payments are arranged by the divorced couple or a court, alimony payments are taxable to the payee and tax deductible to the payer.
There are different types of alimony payments:
Temporary Alimony (pendente lite)
Payments that are made when a couple is in the process of finalizing their divorce. These payments include daily expenses and attorney fees and are made until the court makes a decision on permanent alimony.
The amount awarded by a court after a divorce is finalized. These are paid on a regular, recurring basis. This is normally reserved for long term marriages in New Jersey.
Limited Duration/Rehabilitative Alimony
Financial support provided for a brief period of time to allow the dependent spouse time to establish him or herself financially.
Statutory Factors To Determine Alimony In New Jersey
N.J.S.A. 2A:34-23(b) states:
“In all actions brought for divorce, divorce from bed and board, or nullity the court may award permanent or rehabilitative alimony or both to either party, and in doing so shall consider but not be limited to, the following factors:
Important Alimony Cases Law in New Jersey:
LIMITED DURATION VS. PERMANENT ALIMONY CASES:
DURATION OF MARRIAGE LESS THAN 10 YEARS
Under Cox v. Cox, less than a decade is “not a long term marriage” but rather a limited duration alimony case. Cox. V. Cox, 335 NJ Super. 465, 475 (App. Div 2000). In Cox, the Court indicated that permanent alimony should be awarded when the marriage or civil union is of a long term duration, unless an analysis of the statutory factors indicates that this is not warranted. (See Cox v. Cox, 335 NJ Super. 465, 483 (App. Div. 2000). See also Gordon v. Rozenwald, 380 NJ Super. 55, 66-67 (App. Div. 2005).
WIFE’S YOUTH A FACTOR
In Heinl v. Heinl, 287 NJ Super 337 (App. Div. 1996), the Court stressed the Wife’s youth and skills and the full time school attendance of the children, as a factor militating toward rehabilitative rather than permanent alimony. In this case, the Plaintiff wife has no determinable skills and has not worked in a full time basis for over a decade. Her only skills at this point are cleaning homes which she has done to survive during the pendency of the divorce.
LIFESTYLE A FACTOR
In Hughes v. Hughes, the parties resided in a large house with domestic help on occasion, and an in ground pool. The parties enjoyed vacations, sailing trips to Maine, Nantucket, and Newport. They dined at restaurants regularly, and provided their daughter with violin, acting, gymnastics and skating lessons. The Court awarded permanent alimony.
Modification of Alimony Based on Significant Change of Circumstances:
We are often retained to modify an alimony award already entered into effect via an Order or Final Judgment of Divorce.
In New Jersey, the party seeking modification of the status quo (Alimony and or Child Support Order), bears the burden of proof to establish a change is necessary. Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001). As noted by the Court in Lepis v. Lepis, 83 N.J. 138 (1980), “the equitable power of the courts to modify alimony and support orders at any time is specifically recognized by N.J.S.A. 2A:34-23” which states, in pertinent part:
Pending any matrimonial action brought in this State or elsewhere, or after judgment of divorce or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, 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. * * * Orders so made may be revised and altered by the court from time to time as circumstances may require. Lepis, 83 N.J. at 145-146 (citing N.J.S.A. 2A:34-23). Accordingly, “alimony and support orders define only the present obligations of the former spouses. Those duties are always subject to review and modification on a showing of ‘changed circumstances.’” Lepis, 83 N.J. at 145-146. Case law is clear that a decrease is appropriate when circumstances render all or a portion of support received unnecessary for maintaining a standard of living reflected in the divorce judgment. Lepis v. Lepis, 83 N.J. 138, 153 (1980).
Modification of Alimony in New Jersey Based on Cohabitation:
In Garlinger, the court referred to Suozzo v. Suosso for authority that cohabitation is merely a factor, the court the court indicated that: it is unquestionable a factor to be considered in a proper case, not as misconduct per se, but to the extent that it may bear upon the amount of and necessity for allowance.” Garlinger v. Garlinger, 129 N.J. Super. 37 (C. Div 1974). In this case, there is No cohabitation as the Plaintiff’s boyfriend resides with his parents and makes NO contribution towards the Plaintiff’s household.
In Gayet v. Gayet, 92 N.J. 149 (1983), the New Jersey Supreme Court spoke on this exact issue. The Court reiterated the test for modification alimony in post divorce cases as being “whether the relationship has reduced the financial needs of the dependent financial spokes.” The court further noted that alimony may be decreased when the circumstances render the original amount unnecessary to maintain the standard reflected in the original decrease or agreement.
In Gayet, the Court specifically noted the individuals right to privacy as a factor specifically ”the right to develop personal relationships free from governmental sanctions.” The Court specifically utilized the Galanger test, indicating that:
When the third party contributes to the dependent spouses support or the third party resided in the dependent spouse’s home without contributing anything toward the expenses, the court characterized the test as a scheme which permits modification only if “one cohabitant supports or subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.”
In Mellentz v. Mellentz, the Appelate division held that Gayet did not stand for the proposition that “the payee could reduce the standard of living and apply the difference in income to support a paramour.”