NJ Alimony & Spousal – Partner Support
Despite what some amateurs say…
There is no “alimony calculation” in New Jersey.
Hire a professional who knows better.
Alimony – also known as spousal/partner support or spousal/partner maintenance – is an amount of money one spouse, civil union partner, or domestic partner pays to the other during a pending NJ Divorce or NJ Civil Union / NJ Domestic Partnership dissolution action, or at the conclusion of the divorce or dissolution. This can overlap with child support arrangements, which come into play when partners have children between them.
How Alimony / Spousal Support / Partner Support is Calculated in New Jersey: What is the Philosophy, Purpose and Methodology?
Please select from the links that follow for extremely detailed legal information, including NJ statutory and NJ case law authorities that best answer your top family law and matrimonial law questions about this important, complex topic; a leading NJ family law area of interest.
Alimony – Authority and Purpose
In divorce actions, courts may award alimony “as the circumstances of the parties and the nature of the case shall render fit, reasonable and just.” N.J.S.A. 2A:34-23. Moreover, “courts possess the equitable power… to monitor and revise alimony on an ongoing basis, as circumstances may require.” Weishaus v. Weishaus, 180 N.J. 131, 140 (2004); see also Lepis v. Lepis, 83 N.J. 139, 145-46 (1980). “Alimony is a claim arising upon divorce, which is rooted in the parties’ prior [financial] interdependence” created during their marital relationship. Reese v. Weis, 430 N.J. Super. 552, 569 (App. Div. 2013).
Whether alimony should be awarded is governed by distinct, objective standards defined by the Legislature. Pursuant to N.J.S.A. 2A:34-23b, the trial court “may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party.” In doing so, the court must consider the following non-exclusive set of factors:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(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;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(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;
(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;
(10) The equitable distribution of property ordered and any payments on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(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; and
(13) Any other factors which the court may deem relevant.
The law thus compels judges to consider… <More>
Standard of Living During the Marriage – “Marital Lifestyle”
The Supreme Court has made clear that “[t]he basic purpose of alimony is the continuation of the standard of living enjoyed by the parties prior to their separation.” Innes v. Innes, 117 N.J. 496, 503 (1990)…
Interrelationship Between Alimony & Other Financial Issues
Understanding the interrelationship between alimony, child support, equitable distribution and other financial issues in a given case is critical in arriving at a result that is fair and equitable as support, alimony, equitable distribution and other financial provisions are necessarily part of a “unitary scheme,” whether resolved judicially or within the terms of the parties’ property settlement agreement…
Savings as a Component of Marital Lifestyle
New Jersey case law recognizes that a trial court may award sufficient alimony to enable the supported spouse to “accumulate reasonable savings to protect herself [or himself] against the day when alimony payments may cease because of her [his] husband’s [wife’s] death or other change in circumstances.” Khalaf v. Khalaf, 58 N.J. 63, 70 (1971). It is also clear that reasonable support is not mere subsistence. Lepis, supra, 83 N.J. at 150…
In Mani v. Mani, 183 N.J. 70 (2005), the Supreme Court dealt with “the issue of whether marital fault is a factor in the determination of alimony and the award of counsel fees.” Id. at 72. The Court held that marital fault is irrelevant to alimony except in two narrow instances: (1) cases in which the fault has affected the parties’ economic life; and (2) cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice. The Court ruled that “[t]he former may be considered in the calculation of alimony and the latter in connection with the initial determination of whether alimony should be allowed at all.” Ibid. The Court also held “that marital fault is irrelevant to a counsel fee award.” Ibid.
Income to be Considered in Awarding/Modifying Alimony
The primary source to be considered in setting the amount of an alimony award is the supporting spouse’s income. Steneken v. Steneken, 183 N.J. 290, 299 (2005). Therefore, in reaching “the goal of a proper alimony award… to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage[,]”Crews v. Crews, 164 N.J. 11, 16 (2000), each party’s income or earning ability must be examined. Connor v. Connor, 254 N.J. Super. 591, 604 (App. Div. 1992); see also Lynn v. Lynn, 165 N.J. Super. 328, 341 (App. Div.) (noting that earning capacity or prospective earnings are proper elements for the court’s consideration when determining the amount of alimony to be paid), certif. denied, 81 N.J. 52 (1979).
Rehabilitative alimony “shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur.” N.J.S.A. 2A:34-23(d) (emphasis added)…
Limited Duration Alimony
“Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise.” Gordon, supra, 380 N.J. Super. at 66…
Property Settlement Agreements & Alimony
A property settlement agreement, viewed as a contract, Petersen v. Petersen, 85 N.J. 638, 642, (1981); Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div.), certif. denied, 94 N.J. 600 (1983), will be enforced to the extent it is fair and equitable…
Parties may waive the statutory right to seek modification of support obligations by including a provision specifically stating such an intention, known as an “anti-Lepis clause.” The Chancery Court first enforced an anti-Lepis clause in Finckin v. Finckin, 240 N.J. Super. 204 (Ch. Div. 1990). Judge Krafte determined that this type of agreement was not violative of public policy and further…
Life Insuance & Trusts
N.J.S.A. 2A:34-25 permits courts to order “[either] spouse to maintain life insurance to protect the former spouse [or the children of the marriage] in the event of the payer spouse’s death.” Jacobitti v. Jacobitti, 135 N.J. 571, 573 (1994) (internal quotation marks omitted). See also Konczyk v. Konczyk, 367 N.J. Super. 551, 557 (Ch. Div. 2003), aff’d o.b., 367 N.J. Super. 512 (App. Div. 2004)…
Modification of Alimony
An award for alimony is always subject to review for modification upon a showing of “changed circumstances.” Lepis v. Lepis, 83 N.J. 139, 148 (1980)…
Disability of Obligator
A party may contend that he or she is unable to pay alimony because he or she is disabled. Ordinarily, “[a] party asserting inability to work due to disability bears the burden of proving the disability.” Golian v. Golian, 344 N.J. Super. 337, 341 (App. Div. 2001)… However, where the party asserting disability has been adjudicated as disabled by the Social Security Administration, “the SSA adjudication of disability constitutes a prima facie showing that [the party] is disabled, and therefore unable to be gainfully employed, and the burden shifts to [the oblige] to refute that presumption.” Id. at 342-43. In order to overcome the presumption, the oblige must offer clear and convincing evidence to refute the party’s inability to be gainfully employed as a result of his or her disability. Wasserman v. Parciasepe, 377 N.J. Super. 191, 200 (Ch. Div. 2004). Although the burden of going forward shifts between the parties, the ultimate burden of persuasion remains on the party asserting disability to prove he or she is unemployable. Id. at 197 (citing N.J.R.E. 301).
Retirement of Obligator as “Changed Circumstances”
When an obligor asserts that retirement constitutes a change of circumstances, the court must also evaluate the age and health of the retiring party, the motives behind and timing of the retirement, the ability to pay maintenance after retirement, and the dependent spouse’s ability to provide for himself or herself. Deegan v. Deegan, 254 N.J. Super. 350, 357 (App. Div. 1992)…
Cohabitation by Obligee as “Changed Circumstances”
In Lepis v. Lepis, the Supreme Court accepted as a changed circumstance “the dependent spouse’s cohabitation with another…” 83 N.J. 139, 151 (1980) (footnote and citations omitted); see Ozolins v. Ozolins, 308 N.J. Super. 243, 247-48 (App. Div. 1998) (discussing cohabitation as a basis for changed circumstances where the parties’ property settlement agreement was silent on the issue). When seeking modification or termination of alimony on these grounds, the supporting spouse bears the burden to make a prima facie showing of cohabitation. Konzelman, supra, 158 N.J. at 202; Ozolins, supra, 308 N.J. Super. at 248-49. In Konzelman, supra, the Court explained…
Retroactive Alimony Award or Modification
Unlike child support awards, which may not be reduced retroactively, except back to the filing date of the motion seeking a reduction, see N.J.S.A. 2A:17-56.23a, judges are not prohibited by statute from applying an alimony reduction retroactively. Walles v. Walles, 295 N.J. Super. 498, 514 (App. Div. 1996). Rather, the retroactivity decision is “left to the sound discretion of the trial judge.” Ibid. (citing Brennan v. Brennan, 187 N.J. Super. 351, 357 (App. Div. 1982))…
The applicable legal standards regarding the enforceability of an antenuptial agreement are undisputed. Prior to the Legislature’s adoption of the Uniform Premarital Agreement Act (“UPAA”) in 1988, N.J.S.A. 37:2-31 to -41, the common law in New Jersey required that the proponent of such an agreement establish… <MORE>
Effective January 18, 2010, the statute of frauds was amended to include palimony agreements among the types of agreements that must be in writing and signed by the parties in order to be enforceable. N.J.S.A. 25:1-5(h)…
Answers to Frequently Asked Questions about
Procedural Issues in New Jersey Family Courts
A judge in a matrimonial action may award a party reasonable attorney’s fees and costs. N.J.S.A. 2A:34-23. In doing so, the judge must consider the factors set forth in the court rules pertaining to the award of counsel fees, the financial circumstances of the parties, and whether the parties acted in good faith or bad faith. Ibid….
Requests for Adjournment
It is well-settled that a “request for an adjournment is addressed to the trial judge’s discretion[.]” Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003); see also Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952); Smith v. Smith, 17 N.J. Super. 128, 131-32 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952); Pepe v. Urban, 11 N.J. Super. 385, 389 (App. Div. 1951). “[J]udicial discretion” is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.
Smith, supra, 17 N.J. Super. at 132 (citations omitted)…
Recusal of Remand to Different Judge
Rule 1:12-1(f) governs recusal motions based on claims of court bias. It provides that “the judge of any court shall disqualify himself on his motion and shall not sit in any matter… when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or other parties to believe so.” Rule 1:12-2 provides that a party, on motion filed before trial or oral argument, can seek a judge’s disqualification. The decision on whether a judge should recuse himself from hearing a matter lies within the sound discretion of that judge, and the judge’s decision should not be reversed on appeal absent an abuse thereof. State v. Marshall, 148 N.J. 89, 276, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009); Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)…
Oral Argument & Conduct of Court Proceedings
Rule 5:5-4(a) provides:
Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions…
Need for a Plenary Hearing
There is no absolute right to a plenary hearing. Rather, a plenary hearing is warranted if there are genuinely disputed issues and a hearing would assist the court in resolving the issues presented. P.T. v. M.S., 325 N.J. Super. 193, 214 (App. Div. 1999). Evidentiary hearings are required only when there are factual issues relevant and critical to the resolution of one or more issues. Lepis v. Lepis, 83 N.J. 139, 159 (1980); see also Pacifico v. Pacifico, 190 N.J. 258, 267 (2007); Tretola v. Tretola, 389 N.J. Super. 15, 20 (2009). Conclusory allegations are to be ignored in determining whether a material fact is in dispute. Lepis, ibid. Moreover, “not every factual dispute that arises in the context of matrimonial proceedings triggers the need for a plenary hearing.” Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995), certif. denied, 142 N.J. 455 (1995); see also Murphy v. Murphy, 313 N.J. Super. 575, 580 (App. Div. 1998) (“[a] hearing is not required or warranted in every contested proceeding for the modification of a judgment or order[.]”); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976) (Plenary hearings on every post-judgment application would “impede the sound administration of justice, impose an intolerable burden upon our trial judges, and place an undue financial burden upon the litigants.”). However, where the papers filed raise issues of fact or require credibility determinations, relief cannot be granted or denied absent a plenary hearing. Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998).
Required Findings by the Court
However, “[t]rial judges are under a duty to make findings of fact and to state reasons in support of their conclusions.” Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996); R. 1:7-4(a); see also Gnall v. Gnall, ___ N.J. Super. ___ (App. Div. 2013)…
Motions for Reconsideration
Rule 4:49-2 provides:
Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred…
Appellate Review of Alimony Cases
Because the trial court has discretion to award alimony, appellate review is limited to instances where the court made findings that were inconsistent with the evidence, or unsupported by the record, or the court otherwise misapplied its discretion…
Appellate Procedural Issues
Generally, an issue is preserved for appeal only after it is considered by the trial judge. Investors Sav. Bank v. Keybank Nat’l Ass’n, 424 N.J. Super. 439, 447 (App. Div. 2012); Kothari v. Kothari, 255 N.J. Super. 500, 512 (App. Div. 1992)…