Law Lessons from MAUREEN KELLY V. PETER ARATO, JR., App. Div., A-1410-08T1, November 17, 2009:

The Legislature has declared that an alimony obligation “shall terminate” upon the remarriage of the supported spouse. N.J.S.A. 2A:34-25. This statute memorializes “the strong public policy against enforcing support orders on behalf of remarried former [spouses].” Ehrenworth v. Ehrenworth, 187 N.J. Super. 342, 347 (App. Div. 1982). Despite the public policy, the courts have recognized that parties may contract for the continuation of alimony beyond the date of a supported spouse’s remarriage. Id. at 349. Accordingly, the court must initially turn to the PSA to consider whether the parties unambiguously agreed that defendant would remain obligated to pay alimony following the recipient’s remarriage.

In this case, the parties included in their PSA a provision that declares alimony would continue “for the natural lives of the parties, unless terminated by any one or more of the following” and then lists two events: repudiation or modification of the PSA by the written “mutual consent of the parties”; and defendant’s death.

The PSA’s silence on the subject of remarriage renders plausible the contention that defendant waived the rights set forth in N.J.S.A. 2A:34-25.

If the parties never reached an agreement that alimony would continue after the recipient’s remarriage, then the payor is entitled to the benefit of N.J.S.A. 2A:34-25 and its expression of the strong public policy that alimony end upon the remarriage of the supported spouse. See Flaxman v. Flaxman, 57 N.J. 458, 461 (1971) (holding that “[t]here is no question but that a valid second marriage extinguishes a wife’s right to alimony from her first husband”); Ehrenworth, supra, 187 N.J. Super. at 347-48. “[T]he law is a silent factor in every contract[, and p]arties in New Jersey are likewise presumed to have contracted with reference to the existing law.” Camden Bd. of Educ. v. Alexander, 181 N.J. 187, 195 (2004) (quoting Silverstein v. Keane, 19 N.J. 1, 13 (1955)).

Absent an actual agreement to the contrary, the parties must be deemed to have contracted in a manner consistent with the mandatory directive of N.J.S.A. 2A:34-25. Should a judge find, following an evidentiary hearing, that the parties did not agree about the impact of remarriage on the obligation to pay alimony, then the payor is entitled to an order declaring that the alimony obligation terminated on the date of the supported spouse’s remarriage.

In ascertaining the parties’ intent, the judge may also consider surrounding circumstances. Also, the subsequent conduct of contracting parties often reveals their actual intentions. Michaels v. Brookchester, Inc., 26 N.J. 379, 388 (1958).

See related Blog Post, by Eric S. Solotoff, Esq. of Fox Rothschild LLP

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