Pursuant to N.J.S.A. 2A:34-23(b), there are fourteen statutory factors the court must consider when determining spousal support:
- The actual need and ability of the parties to pay; The court must consider the current financial circumstances of the parties when determining what type, if any, spousal support is appropriate. Actual income will be analyzed unless those figures are not available, in which case the court may impute income to a party. It is important to note that the ability of the parties to earn is what guides the analysis in determining support obligations. In addition, the needs of the receiving spouse are of utmost important and will be looked at in light of both the lifestyle of the parties as well as the actual budget found on the case information statement.
- The duration of the marriage or civil union; Pursuant to N.J.S.A. 2A:34-23(b), the term of alimony payments shall not exceed the length of the marriage. Therefore, the duration of the marriage is an important factor when determining the term. The marriage is said to begin on the date of the ceremony. However, the marriage end date is not always clear as couples are often separated for a period of time before filing for divorce.
- The age, physical and emotional health of the parties; The age, physical and emotional health of the parties is important in determining the employability and earning potential of each spouse. For example, if a former spouse is 70 years old and in poor health, it is more likely a court will view that spouse as financially dependent on the other spouse as opposed to a 35 year old in good health who could more easily secure employment.
- The standard of living; Standard of living of the spouses during the marriage will be considered by examining the income and expenses of both parties. Courts have typically characterized standard of living as modest, average or lavish and discussed the standard in conjunction with the parties spending habits or desire to save. As such, alimony may be used to ensure that both parties may continue to live in the same manner to which he or she grew accustomed during the marriage.
- Earning capacities, educational levels, vocational skills, and employability of the parties; In assessing the financial circumstances of the parties, ability to pay alimony, and financial need to receive alimony, the overall employability and earning potential of each party is key. Because the courts look at the ability of either spouse to pay rather than their actual earnings, the court may determine that one spouse may still be responsible to support the other spouse if that spouse has an increased earning capacity but is voluntarily unemployed or underemployed. For example, individuals who have advanced degrees and strong employment histories will be seen as having high earning capacities.
- Length of absence from the job market; In cases where one spouse may have not worked for an extended period of time as a result of lack of financial necessity, childrearing, disability, or many other potential causes this factor is paramount. In these cases, the court may determine that alimony is vital to ensure that the dependent spouse can re-enter the workforce absent undergoing extreme financial hardship.
- Parental responsibilities of the children; The parental responsibilities of each spouse are considered in light of the impact that child rearing can take on a spouse’s time and ability to work.
- Time and expense necessary to acquire sufficient education; This factor is important in cases where: 1) one spouse acquired an advanced degree during the course of the marriage, or 2) one spouse desires to attend an academic institution or program to increase his or her employability. In the first case, if one spouse was enrolled in an academic program during the marriage for which the supporting spouse contributed in some way, then that spouse may be entitled to Reimbursement Alimony. Next, if a spouse needs or desires to increase his or her skills in order to acquire sufficient employment, the court will look at the nature and extent of the program to determine the proper alimony award should the other spouse need to support that spouse during that time.
- History of the financial or non-financial contributions to the marriage; Contributions to the marriage such as homemaking, parental responsibilities, or significant sacrifices so that one spouse could attain his or her current income level, are relevant to the calculation of alimony.
- Equitable distribution of property; There is a close interdependent relationship between support awards and equitable distribution of property. Courts may look at the financial opportunities that one spouse may have acquired as a result of equitable distribution of property when determining whether or not alimony is appropriate. In some cases, alimony may not be warranted as a result of the needs of a dependent spouse being satisfied through property distribution.
- Income available to either party through investment of any assets; For purposes of calculating alimony, any income producing assets, such as investments, are relevant. The gross needs of the parties as well as their ability to pay is analyzed under the totality of the circumstances and not solely reliant on either spouse’s salary.
- Tax treatment and consequences to both parties of any alimony award; Alimony is tax deductible to the paying spouse, but taxable income to the receiving spouse. As a result, the courts will look to the tax impact this has on the financial circumstances of both spouses.
- The nature, amount, and length of pendente lite support paid, if any; If a pendente lite order has been issued then the interim support payments are important to look to in determining the final alimony award. Courts may consider whether or not such awards were sufficient or insufficient. In addition, such applications may also provide further evidence of the economic circumstances of the parties.
- Any other factor which the court may deem relevant; The court may also consider any other factor important to determining spousal support. One factor the court has considered not statutorily defined is the desire to prevent a financially dependent spouse from becoming reliant on public assistance if this can be avoided through alimony.
There are four types of alimony that may be awarded:
Limited Duration Alimony:
Alimony payments are made for a fixed period of time that cannot exceed the length of the marriage.
Limited Duration Alimony in New Jersey is reserved for marriages that were less than 20 years.
The amount of the alimony payments may be modified if a change in circumstances occurs. However, the term is typically unmodifiable absent unusual circumstances.
Reimbursement alimony is awarded when one spouse provides financial support to the other spouse thereby enabling that spouse to pursue a higher level of education.
Reimbursement alimony may not be modified.
Rehabilitative alimony allows a financially dependent former spouse to receive alimony payments while undergoing training or education that will allow him or her to become more competitive in the job market.
This type of alimony may include paying the cost of a training or educational program such as a new degree.
This type of alimony may be awarded alongside other types of alimony.
Open Durational Alimony
Open duration alimony is awarded when the length of the marriage was twenty years or more and a former spouse has an unequal present or future earning capacity in comparison to the other spouse.
Alimony payments may be modified if a substantial change in circumstances occurs. Examples of a change in circumstance include: