NJ Alimony Reform: a reasonable position

The topic of alimony reform in NJ has been popular in the media.  The issue is cloaked in misinformation and propaganda by agenda driven groups who use the word “reform” in an attempt to hide their personal agendas.  As a family law attorney for over 14 years I have been on both sides of the alimony equation.  I recognize that the current law is not perfect; no law is.  True reform must strike a balance and be fair to both parties.  The proposals set forth by groups of knowledgeable and objective professionals have advocated even-handed reforms.  The Family Law Executive Committee of the New Jersey State Bar Association (of which I am a member) has supported fair and equitable reforms while educating our legislators.  I am proud of the work this body has done and I gratefully thank the leadership of FLEC fro leading the charge. Section President, Brian Schwartz, Esq. has authored the following information that succinctly addresses the issue of NJ alimony reform. (The following information first appeared in the NJSBA Bar Report on 2/24/14)

Cross-Examination: Straight talk about alimony reform 

New Jersey State Bar Association Family Law Section Chair Brian Schwartz recently discussed the association’s efforts to see smart and fair legislation adopted to update the state’s alimony laws.

Q: As we start a new legislative session, what issue in the Legislature would you say is the most important one facing the matrimonial bar right now?
The issues regarding alimony are a “holdover” from last session, and will continue to dominate this current session. At present, there are six bills pending that in some way address alimony in New Jersey. Our goal has been to find a smart and fair approach to reviewing the state’s alimony laws. The state bar association, whose members include attorneys who represent those who pay alimony and those who receive it, has focused on addressing concerns from both sides with the current alimony laws, especially in light of the changed economic times that we are in as a result of the 2008 economic recession. The chief goal of the association is to find a realistic and balanced approach for New Jersey citizens that focuses on fairness.

Q: What does the NJSBA want to see happen?
As far back as February 2012, we have supported the creation of a commission to independently study the state of New Jersey’s alimony laws and make recommendations without a preordained result. Unfortunately, the resolution to create the commission has stalled in the Legislature. Consequently, the state bar has collaborated in the drafting of legislation pending in the state General Assembly, A-1649. The bill provides practical and reasonable guidance for reviewing and resolving issues such as changes in economic circumstances, cohabitation and retirement of the parties.

After all, the most complex alimony issues are not related to the initial alimony award, but rather what happens when circumstances change. A-1649, for example, provides specific factors for a court to consider when a person who has suffered an involuntary loss of employment or reduction in income seeks a change the alimony payment. The proposed legislation likewise provides guidance regarding cohabitation and retirement–making application of the law more definitive and, therefore, providing more predictable outcomes.

This, in turn, allows for future planning by the parties by requiring consideration by the parties and attorneys as to how alimony will be modified or terminated before a person actually retires or reaches a specific age, and takes into account the circumstances of both the payor and recipient. This measure provides a balanced playing field and acknowledges that the accepted retirement date for many, including teachers, laborers, delivery truck drivers, and others, may be well before the age for receipt of Social Security.

Finally, it means alimony can be suspended or terminated if a person receiving alimony is found to be in a serious relationship with another. It further ends the overt deception some alimony recipients undertake by, for example, maintaining a separate address to avoid a finding of cohabitation. A-1649 provides that, under the right circumstances, cohabitation can be found even if the parties don’t live together full-time.

Q: Why is A-845/S-488 a problem?
This legislation does very little to address the problems that some people have raised about the inflexibility of the current alimony laws. Instead, it sets forth harsh guidelines that will be harmful across the board because it treats all marriages of the same length identically. In truth, it seeks to replace “fairness” with “convenience.”

This kind of cookie-cutter approach can have the unintended consequence of imposing alimony where none may be warranted. In one study, 5,932 cases were reviewed in which there was no award of alimony by a court. Yet, in those same cases, had the guidelines similar to those proposed been in place, over 55 percent (3,349) would have received alimony anyway.

It also limits alimony in instances where more is not just warranted, but necessary to protect people from becoming a public charge. As an example, a 60-year-old who has been married for 30 years would receive alimony for six or seven years, at most. This legislation would allow someone married for just 10 years to receive alimony for essentially the same duration.

Most disturbing, A-845/S-488 calls for retroactive application. That is, every alimony award–whether by court order or agreement–would be subject to review, and perhaps modification, for no reason other than the change in law. So, for example, if someone accepted a longer term of alimony in exchange for a property interest, that person could now find that he or she will have only that part of the agreement regarding alimony changed–without the ability to review the property distribution for which the longer alimony had been exchanged. This cannot, under any system, be considered a fair result. Moreover, as there are over 30,000 new filings each year, and already 35,000 post-judgment applications each year, our courts would be overwhelmed, rendering many non-functional.

Q: Does the NJSBA have a coalition to support this position?
We have developed a coalition that includes over 150,000 people and represents the interest of not just attorney groups, but also Garden State Equality, the National Organization of Women of New Jersey, the New Jersey Coalition for Battered Women, and the New Jersey Displaced Homemakers Network.

Q: Establishing guidelines seems like a straightforward approach, why is that a problem?
Equity can never take a back seat to simplicity. Alimony–both when established and when being reviewed due to changes in circumstances–must be determined based upon the facts and circumstances of each family, as each family, each set of circumstances is different. In sum, the state bar supports fairness and we will fight for that fairness to be preserved.

About Sandy Durst

Sandy Durst, Esq., is the founding partner of The Durst Firm where he heads the Family Law Department. Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter. Each case is given the personalized attention it deserves.
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