Pursuant to NJ Alimony Laws, how is alimony in NJ determined? Are there NJ Alimony guidelines like there are NJ child support guidelines?
Whether you are paying or receiving alimony, to make sure that you get the best alimony deal possible to you given your particular situation, you need to understand that the way that alimony in New Jersey is supposed to be calculated is often very different from the way that it actually is calculated.
After understanding that distinction, you will be equipped with the information necessary to allow you to make an informed decision as to how alimony should be calculated in your NJ divorce case.
The way that alimony is actually calculated in most cases is what I informally refer to as "the one-third rule."
This is in stark contrast to the way that our New Jersey alimony statute says that the alimony law is supposed to be calculated.
The way that the New Jersey alimony law is supposed to work is that a judge is supposed to consider the statutory factors and apply the facts of the particular case to the listed statutory factors, and then render a fair and equitable ruling on a supported spouse's claim to alimony.
The specific statutory factors are as follow:
(1) The actual need of the supported spouse, and the actual ability of the other spouse to pay alimony;
(2) The length of the marriage;
(4) The standard of living established in the marriage, 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;
(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) Each parties' share of the parental responsibilities for the children of the marriage;
(8) The time and expense necessary to acquire sufficient education or training to enable
the party seeking alimony to find appropriate employment, the availability of the training and employment that she requires, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage 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 payouts on equitable distribution, directly or indirectly, out of current income;
(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;
(13) The nature, amount, and length of alimony paid during the divorce proceedings; and
(14) Any other factors which the court may deem relevant.
So what a judge is supposed to do when deciding an alimony case is listen carefully to what the husband says the facts are, listen equally carefully to what the wife says that the facts are, consider the evidence produced by both parties, and then apply the facts as the judge truly believes them to be having listened to both parties to all of the statutory criteria.
That sounds like an awful lot of work, doesn't it?
Well, indeed, it is an awful lot of work.
It also leaves quite a bit of room for the judge to exercise discretion.
In my experience, most cases settle and therefore judges do not have to engage in the difficult task of calculating alimony pursuant to the specific statutory terms very often.
But what happens in the very large percentage of cases that settle without a trial? If we do not have a judge to listen to the testimony of the parties, consider the evidence, apply the evidence to the facts of the particular case, and the pick a number to be set as alimony, how does alimony get calculated?
Well, in my experience, people in the system -- lawyers, judges, mediators -- tend to "cop out" and go toward what is known as "the one-third formula."
The one third formula says that we take the difference of the income between the husband and the wife, divide that difference by 3, and "voilà! "...there is the alimony number.
The one-third formula is not the law at all, and indeed, the Appellate Division of the New Jersey Court has twice stated that there is no such thing as a one-third formula but rather the alimony statute is to consulted at all times when alimony is being calculated.
Nonetheless, the simplicity of the one-third formula seems to be too attractive to most lawyers and even to many judges.
That is not to suggest that judges use the one-third formula when they decided cases during a trial; in my experience, they do not.
So the practical question for someone facing paying alimony or receiving alimony ultimately comes down to, "Will it be better for me to have the statutory factors applied to the facts of my case, as opposed to using the rather arbitrary one-third formula?"
The answer to that all-important question depends upon the specifice facts of your situation.
If you conclude that you will likely fare better by having the statutory terms applied to the facts of your case, then what can you do to make sure that the statute is applied in your case?
That's easy… just insist that it be applied. Tell your lawyer to tell the judge that there is no 1/3 alimony rule and that you know for a fact that the Appellate Courts have said this at least twice in recent years.
No one can argue with you that applying the statute to the facts of the case is the proper way to have an alimony determination made.
If, on the other hand, after a careful review of the alimony statute and consideration as to how it will likely be affected by the particularities of your case, you conclude that you will likely do better by allowing the 1/3 rule to be applied, then just sit back and go along for the ride... in all likelihood, the system will default to this theory for you.