Alimony Authority & Purpose (contd.)
The law thus compels judges to consider and weigh all of these statutory factors to determine whether alimony is appropriate and, if so, ascertain the nature and calculate the amount of alimony needed by the dependent spouse. See N.J.S.A. 2A:34-23c (requiring the court to “make specific findings on the evidence” regarding statutory factors relevant to an alimony award). Notably, where there is a request for permanent alimony, the court must first consider and weigh the statutory factors; if the court finds permanent alimony is not warranted, it must give reasons why, and then consider, with reference to those statutory factors, whether an award of rehabilitative, limited duration, and/or reimbursement alimony is warranted. This process is designed to account for the unique needs and abilities affecting each dependent spouse, as well as the financially secure spouse called on to continue support after the marriage ends in divorce.
The overriding purpose of this statute is to give trial courts broad discretion to fashion remedies on a case-by-case basis that achieves justice and fulfills the litigants’ needs, including pendente lite relief. Randazzo v. Randazzo, 184 N.J. 101, 111-12 (2005). Notably, the calculation of alimony is different from child support in that alimony is established not by application of mathematical guidelines, but instead by a weighing of these thirteen qualitative factors contained in N.J.S.A. 2A:34-23b.
In Mani v. Mani, 183 N.J. 70, 79-80 (2005), Justice Long provided the following history of alimony and discussion of its purpose:
The history of alimony is instructive. In early England, two forms of marital dissolution existed. The most common was an ecclesiastical divorce from bed and board (a mensa et thoro). Robert Kirkman Collins, The Theory of Marital Residuals: Applying An Income Adjustment Calculus to the Enigma of Alimony, 24 Harv. Women’s L.J. 23, 28 (2001). In reality that “divorce” was a legal separation that, in accordance with religious teaching on the indissolubility of marriage, did not terminate the marital relationship. John Witte Jr., The History and Evolution of Marriage From Sacrament to Contract: Marriage, Religion and Law in Western Tradition 156, 160-61 (1997). The other form – a civil divorce (a vinculo matrimonii) – which literally means severing the chains of matrimony, although technically available, was extremely rare because it required an act of Parliament. 13 Halsbury’s Laws of England, 245 (1975).
Alimony was granted only in the former class of cases on the theory that husband was obliged to continue to support his wife as long as they remained married. Collins, supra, 24 Harv. Women’s L.J. at 28-29 (2001). Somehow, with the passage of time, the distinction between true divorce and mere separation was obliterated and alimony began to be awarded in all cases. No rationale was advanced to explain why parties, who were no longer married, remained economically bound to one another. As one legal scholar put it:
By the time that matrimonial law reform in Great Britain created universally accessible civil divorce in the mid-nineteenth century, the concept of alimony was so well-accepted that it was carried over and applied to those new cases where the marriage itself was actually ending, without apparent reflection or explanation as to why it should continue once the marital relationship had been extinguished. Section 32 of the Matrimonial Causes Act [of] 1857 gave the judge discretion to order a husband to provide for his wife even after the marriage had ended in an amount reflecting her own wealth, his own means, and their respective conduct during the marriage. Posterity was not, however, provided with a rationale.
Divorce based on the English practice was available in the American colonies from the earliest times. Maynard v. Hill, 125 U.S. 190, 206, 8 S. Ct. 723, 727, 31 L. Ed. 654, 657 (1888). The concept of alimony also carried over. Again, as had been the case in England, the reason for alimony, outside the legal separation scenario, remained an enigma. 2 Homer Harrison Clark, The Law of Domestic Relations in the United States, 257-58 (2d ed. 1988). That lack of clarity regarding the theoretical underpinning of post-divorce alimony explains why, although alimony is now awarded in every jurisdiction, Collins, supra, 24 Harv. Women’s L.J. at 31, there is no consensus regarding its purpose.
Indeed, many distinct explanations have been advanced for alimony. Id. at 23. They include its characterization as damages for breach of the marriage contract, Margaret F. Brinig & June R. Carbon, The Reliance Interest in Marriage and Divorce, 62 Tul. L. Rev. 855, 882 (1988); as a share of the benefits of the marriage partnership, Rothman v. Rothman, 65 N.J. 219, 229, 320 (1974); as damages for economic dislocation (based on past contributions), Elisabeth M. Lands, Economics of Alimony, 7 J. Legal. Stud. 35 (1978); as damages for personal dislocation (foregoing the chance to marry another), Lloyd Cohen, Marriage, Divorce, Quasi Rents; Or, “I Gave Him the Best Years of My Life,” 16 J. Legal Stud. 267, 276 (1987); as compensation for certain specific losses at the time of the dissolution, A.L.I., Principles of Law of Family Dissolution: Analysis and Recommendations, 8 Duke J. Gender L. & Pol’y 1, 28 (2001); as deterrence or punishment for marital indiscretion, Brinig & Carbone, supra, 62 Tul. L. Rev. at 860-61; and as avoidance of a drain on the public fisc, Miles v. Miles, 76 Pa. 357, 358 (1874).
As noted, alimony has been described as “an economic right that arises out of the marital relationship and provides the dependent spouse with ‘a level of support’” that approximates the standard of living that existed during the marriage. Mani v. Mani, 183 N.J. 70, 80 (2005) (quoting Stiffler v. Stiffler, 304 N.J. Super. 96, 98 (Ch. Div. 1997)); see also Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013). Most recently, in Gnall v. Gnall, ___ N.J. Super. ___ (App. Div. Aug. 8, 2013), the court explained the purpose of alimony, as follows:
We nevertheless emphasize that judges considering an alimony request must always keep in mind the primary “purpose of awarding alimony to a spouse is based on ‘an economic right that arises out of the marital relationship and provides the dependent spouse with a level of support and standard of living generally commensurate with the quality of economic life that existed during the marriage.’” Clark v. Clark, 429 N.J. Super. 61, 72-73 (App. Div. 2012)(quoting Mani v. Mani, 183 N.J. 70, 80 (2005) (internal quotation marks and citations omitted)). The economic dependence created as a result of the marital relationship is a crucial finding necessary to impose the ongoing financial entanglement of an alimony award. The law attributes a party’s individual success to have been achieved by virtue of the joint union — “a shared enterprise, a joint undertaking, that in many ways… is akin to a partnership.” Rothman v. Rothman, 65 N.J. 219, 229 (1974). See also Guglielmo v. Guglielmo, 253 N.J. Super. 531, 543 (App. Div. 1992) (“We are entirely satisfied that a spouse who maintains the home while her husband’s career advances should share in the rewards of their combined efforts.” (citations omitted)). Finally, a judge awarding alimony must methodically consider all evidence to assure the award is “fit, reasonable and just” to both parties, N.J.S.A. 2A:34-23, and properly balances each party’s needs, the finite marital resources, and the parties’ desires to commence their separate futures, N.J.S.A. 2A:34-23c. Parties must not forget, “alimony is neither a punishment for the payor nor a reward for the payee.” Mani, supra, 183 N.J. at 80.