NJSA 2A:34-23
Following a trial where Alimony is at issue, the Court must consider a number of statutory factors in rendering a decision. Clients frequently ask whether there is a schedule of payments set up by the legislature or court describing what Alimony should be at varying levels of income. There is none. There is however a “rule of thumb” that serves as a starting point when considering Alimony: 25% of the difference between the supporting spouse’s income reduced by the supported spouse’s income. By way of example, if the supporting spouse earns $100,000 per year in after-tax income and the supported spouse earns $25,000.00, the difference would be $75,000. One third of the difference would be $25,000.00 or slightly more than $2,000 per month. Appellate court strictly caution trial judges not to utilize such cases in resolving Alimony, but rather must apply the alimony factors.
Two further points before addressing the alimony factors. First: the Alimony statute mandates that where marriages are over 20 years in length, alimony payments should be “open duration”, meaning that no limit should be placed by the initial trial court decision on the length of time that alimony is to be paid. Where less than 20 years duration, generally barring unusual circumstances, the length required for payment of Alimony should not exceed the length of the marriage - the so-called “coverture” period - from the date of marriage till the date the Complaint for divorce is filed. Now on to the Alimony factors:
“ b. In all actions brought for divorce, . . . divorce from bed and board, legal separation... the court may award .. . open durational alimony ... In so doing the court shall consider, but not be limited to,
the following factors:
(1) The actual need and ability of the parties to pay;
Where there is a differential in income between the parties, the Court if asked will consider entering an Alimony award based upon the supported spouse’s actual NEED and the supporting spouse’s ABILITY to PAY. This assume neither party is under- employed. If one or both parties is reasonably capable of earning more income, the court will IMPUTE additional income to such party - (while not requiring they earn the money). There is a famous NJ case where a surgeon decided to quit and become a massage therapist. The court’s decision was to IMPUTE (calculate Alimony) based upon earnings as a surgeon; while of course not requiring the doctor return to his former profession. The surgeon’s actions in voluntarily reducing earnings are considered a “self-induced hardship.”
(2) The duration of the marriage or civil union;
As noted above, marriages of less than 20 years should be limited to alimony awards not exceeding the length of the marriage: “limited duration” alimony awards. If the marriage is over 20 years the old fashion term was “permanent alimony”. The statute now labels applicable alimony awards as “open duration.”
(3) The age, physical and emotional health of the parties;
Self explanatory.
(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, with neither party having a greater entitlement to that standard of living than the other:
The bold final phrase above was recently added. In filling out the Case Information Statements, the monthly expense pages have 2 columns, one for marital lifestyle, and the second for actual present monthly expenses.
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
Here the court has the latitude to impute income to an under-employed party.
(6) The length of absence from the job market of the party seeking maintenance;
If by agreement one spouse has been raising children and been out of the job market for years, the Court will not impute an earning level to such party because on re- entering the job market, their earnings are less than if they had been continually employed.
(7) The parental responsibilities for the children;
Does a child suffer from ADHD, is a child on the autism spectrum. Obviously such child will require more time and hands on parenting time than otherwise.
(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;
Self-explanatory. \
(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;
Self explanatory.
(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;
Equitable distribution - i.e. asset distribution - may generate unearned income. If so it should be considered.
(11) The income available to either party through investment of any assets held by that party;
Similar to 10 above.
(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;
No longer relevant since payment of alimony is no longer a taxable event.
(13) The nature, amount, and length of pendente lite support paid, if any
By way of example. If the parties are married 5 years and take 2 years to be divorce; AND for those two years the supporting spouse paid adequate pendente lite support, this length of payment should be factored in to the length of time alimony should be paid going forward
(14) Any other factors which the court may deem relevant.
A catch-all provision giving the trial court the authority to handle unusual situations
Imputation of Income - also discussed above:
A. The trial court can impute income to a party as part of the calculus to determine a fair and equitable level of support on findings that such party, without just cause, is voluntarily under employed.
On findings that a spouse is not earning his or her true potential income, "an imputation of income based on that potential is appropriate." Stiffler v.Stiffler, 304 NJ. Super, 96, 101 (Ch. Div. 1999). Accord Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App.Div.1999) holding that the potential earning capacity of a party, not her actual income, should be considered). The Court may impute income to an under-employed spouse. Dorfman v. Dorfinan, 315 N.J. Super. 511, 516 (App. Div. 1998).
The seminal case discussing imputation of income is Storey v. Storey, 373 N.J. Super. 464 (App.Div.2004). Quoting from the Appellate decision in Storey:
“ Courts should be guided by the factors the Legislature has identified as relevant to alimony. See N.J.S.A. 2A:34-23b(1) to-23b(13). A focus on the statutory criteria will guide the exercise of discretion and promote predictability in decision making. Reasons such as lack of work in one's field, health condition, the need to care for a child and loss of professional license are related to ability to obtain or perform work in the prior field and are entitled to significant weight. N.S.A. 2A:34-23b(3), (5), (7);
see, €.g., Kuron, supra, 331 NJ. Super. at 570 (loss of professional license); Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001) (disability); Deegan, supra, 254 NJ. Super. at 358 (referencing health); Mowery v. Mowery, 38 N.J. Super. 92, 102 (App. Div. 1955) (demand for labor), certif: denied, 20 N.J. 307 (1956).
“In contrast, reasons such as a desire for a less demanding lifestyle, a new relationship or better working conditions, while rational and entitled to consideration as the trial judge deems appropriate, N.J.S.A. 2A:34-23b(13), are entitled to less weight, because those reasons are not statutorily recognized. See N.J.S.A. 2A:34-23b.
“ Competent evidence includes data on prevailing wages from sources subject to judicial notice. N.J.R.E. 201; Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2146, 12 (2004) (discussing imputation based on data reported by the New Jersey Department of Labor where child support is at issue).
" Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability." Storey, supra, 373 N.J. Super. at 474. “ An alimony award should "take into consideration the real facts and circumstances of each party's financial situation including actual income, expenses, support from other sources and potential earning capacity." Connor y. Connor, 254 N.J. Super. 591, 604 (App. Div. 1992). On appeal, a trial judge's imputation of a specific amount of income “will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence."
Storey, supra, 373 N.J. Super. at 475. (Reformatted for clarity)
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