Newburgh [Newburgh v. Arrigo, 88 N.J. 529 (1982)] factor four, a parent’s ability to pay, is acknowledged to be the most significant with regard to college contribution. See Moehring v. Maute, 268 N.J. Super. 477, 481 (Ch. Div. 1993); Weitzman v. Weitzman, 228 N.J. Super. 346, 357 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

A trial judge’s authority to impute income in the process of assessing child support is well-established. The Child Support Guidelines indicate that the “‘[t]he fairness of a child support award . . . is dependent on the accurate determination of a parent’s net income. If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent . . . .” Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2504 (2012).

In deciding whether to impute income, a court considers:

(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,
(2) the reason and intent for the voluntary underemployment or unemployment,
(3) the availability of other assets that may be used to pay support, and
(4) the ages of any children in the parent’s household and child-care alternatives.

[Ibid.]

A trial court’s decision to impute income must be “based on a realistic assessment of capacity to earn.” Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004).

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A trial court’s decision to impute income must be based on a realistic assessment of capacity to earn originally appeared on NJ Family Issues on January 24, 2012.

“Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise.” Gordon, supra, 380 N.J. Super. at 66. Limited duration alimony is available to a spouse who made financial contributions to a relatively short-term marriage, because such a spouse is not entitled to permanent alimony or is in need of training or education to re-enter the workforce. Id. at 65. However, limited duration alimony may not be used if permanent alimony would otherwise be available. N.J.S.A. 2A:34-23(c); Gordon, supra, 380 N.J. Super. at 66.

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Limited duration alimony may not be used if permanent alimony would otherwise be available originally appeared on NJ Family Issues on January 17, 2012.

Alimony is “an economic right that arises out of the marital relationship and provides the dependent spouse with ‘a level of support’” that approximates the standard of living that existed during the marriage. Mani v. Mani, 183 N.J. 70, 80 (2005) (quoting Stiffler v. Stiffler, 304 N.J. Super. 96, 98 (Ch. Div. 1997)). Because the trial court has discretion to award alimony, review is limited to instances where the court made findings that were inconsistent with the evidence, or unsupported by the record. Gordon v. Rozenwald, 380 N.J. Super. 55, 76 (App. Div. 2005); Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002).

“[T]he goal of a proper alimony award is 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). In divorce actions, courts may award permanent, rehabilitative, limited duration or reimbursement alimony to either party, provided the factors enumerated in the alimony statute are considered. N.J.S.A. 2A:34-23(b).

The primary source to be considered in setting the amount of alimony is the supporting spouse’s income. Steneken v. Steneken, 183 N.J. 290, 299 (2005). Central factors to be considered in awarding alimony are the duration of the award and the need for one spouse to receive and the other to pay. Stiffler, supra, 304 N.J. Super. at 98-99.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Alimony is an economic right that arises out of the marital relationship and provides the dependent spouse with a level of support that approximates the standard of living that existed during the marriage originally appeared on NJ Family Issues on January 17, 2012.

In awarding counsel fees, courts consider the bad faith of a party. N.J.S.A. 2A:34-23. Bad faith can be established by the “intentional misrepresentation of facts or law” to avoid or unfairly limit equitable distribution or alimony. Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992). See Brown v. Brown, 348 N.J. Super. 466, 474 (App. Div.) (defendant acted in bad faith in misrepresenting his income and assets subject to equitable distribution), certif. denied, 174 N.J. 193 (2002).

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Bad faith can be established by the intentional misrepresentation of facts or law to avoid or unfairly limit equitable distribution or alimony originally appeared on NJ Family Issues on January 8, 2012.

When PSA terms are “plain and explicit” and “set forth in clear and unambiguous language, leaving no room for interpretation,” the court will enforce them “as written and agreed to by the parties, absent a substantial change in circumstances” or unless they “would no longer be fair or equitable.” Dolce v. Dolce, 383 N.J. Super. 11, 21 (App. Div. 2006); see also Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (perceiving “no inequity or manifest injustice in enforcing the plain and clear terms of the PSA as found by the motion judge”). Moreover, “‘fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.’” Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

When PSA terms are plain and explicit and set forth in clear and unambiguous language, leaving no room for interpretation, the court will enforce them as written and agreed to by the parties, absent a substantial change in circumstances or unless they would no longer be fair or equitable originally appeared on NJ Family Issues on January 8, 2012.

The expert derived a yearly alimony figure by taking one-third of the difference between the spouses’ incomes. In doing so, the expert relied on a generally accepted objective standard of matrimonial attorney practice and not simply a standard personal to her. See Fernandez v. Baruch, 52 N.J. 127, 131 (1968).

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Some experts derive a yearly alimony figure by taking one-third of the difference between the spouses’ incomes originally appeared on NJ Family Issues on January 5, 2012.

In Platt v. Platt, 384 N.J. Super. 418, 422 (App. Div. 2006), the plaintiff controlled a business and “determined the salary he would be paid each year.” In that case, the court found it was reasonable for the trial court to average plaintiff’s income over a five-year period, including the two most recent years after the divorce complaint was filed, because he “chose to drastically reduce” his income even though his business was “doing well financially.” Id. at 426-27.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

It may be reasonable for the trial court to average income over a five-year period originally appeared on NJ Family Issues on January 5, 2012.

A party to a matrimonial action who seeks a modification of his or her support obligations ordinarily must show changed circumstances since the establishment of those obligations. See Lepis v. Lepis, 83 N.J. 139, 145-49 (1980). However, the parties may enter into a property settlement agreement under which support obligations will be modified at a specific future date without a showing of changed circumstances, at least in a case in which the initial obligations exceed what would be provided under the Child Support Guidelines. See Weber v. Weber, 211 N.J. Super. 533, 535 (App. Div. 1986).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Parties may enter into a property settlement agreement under which support obligations will be modified at a specific future date without a showing of changed circumstances originally appeared on NJ Family Issues on December 21, 2011.

The duty to pay alimony is always subject to modification or termination upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 146 (1980). The right to a modification based upon changed circumstances is also established by statute. N.J.S.A. 2A:34-23 provides:

Pending any matrimonial action . . . brought in this State or elsewhere, or after judgment of divorce . . ., the court may make such order as to the alimony or maintenance of the parties, . . . as the circumstances of the parties and nature of the case shall render fit, reasonable and just[.] . . . Orders so made may be revised and altered by the court from time to time as circumstances may require.

Among the “changed circumstances” that warrant modification of an alimony obligation is a “decrease in the supporting spouse’s income.” Lepis, supra, 83 N.J. at 151. Changed circumstances “are not limited in scope to events that were unforeseeable at the time of divorce.” Id. at 152. If the party seeking modification or elimination of the payment obligation establishes a prima facie showing of changed circumstances that has “substantially impaired the [obligor's] ability to support himself or herself,” the court should require both parties to make “full disclosure” of their financial status, including tax returns, and thereafter determine the extent of any modification of the alimony obligation. Id. at 157.

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). Even if the payor spouse advances rational reasons for retiring, the crucial determination is whether the advantage to the retiring payor spouse outweighs the disadvantage to the payee spouse. Id. at 358. If that question is answered affirmatively, then retirement will constitute a change in circumstances sufficient for a modification of a spousal agreement. Ibid. As such, where the payor spouse “has substantial reasons for retiring . . . and the effect on the payee spouse is minimal (due, for example, to other available income, qualifying for social security, or new employment) the balance will be struck in favor of the payor.” Ibid.

If the obligor establishes a prima facie change of circumstances, and demonstrates that the advantages to him of retiring substantially outweigh the disadvantages to the payee, the court must determine whether, and to what extent, the obligor’s alimony obligation should be modified. Innes v. Innes, 117 N.J. 496, 504 (1990). In making that determination, the court is prohibited from considering the obligor’s pension income as a source for the payment of alimony if that pension has already been subject to equitable distribution in the parties’ divorce. Id. at 505-06. ^[1] In Innes, the Court relied upon a portion of N.J.S.A. 2A:34-23, which provides:

When a share of a retirement benefit is treated as an asset for purposes of equitable distribution, the court shall not consider income generated thereafter by that share for purposes of determining alimony.

[Innes, supra, 117 N.J. at 505.]

The Court determined that N.J.S.A. 2A:34-23 codified existing judicial precedent establishing that pension benefits that had been subject to equitable distribution could not subsequently be used to calculate available income when determining whether to modify an alimony award. Id. at 506. The Court observed that the plaintiff’s “entire pension was
treated as an asset for purposes of an immediate offset equitable-distribution award . . . . [and] [n]othing in the record suggests that merely a portion of [the obligor's] pension was considered marital property subject to equitable distribution.” Ibid. For that reason, the Court held that N.J.S.A. 2A:34-23 “immunize[d]” the obligor’s pension “from consideration in alimony-modification determinations.” Ibid.

The prohibition on such double-dipping found its origins in D’Oro v. D’Oro, 187 N.J. Super. 377 (Ch. Div. 1982), aff’d, 193 N.J. Super. 385 (App. Div. 1984). In that case the trial court determined it would be unfair if the dependent spouse were able to assert what amounts to a double claim on the spouse employee’s pension. Id. at 378. See Steneken v. Steneken, 367 N.J. Super. 427, 440 (App. Div. 2004), aff’d, 183 N.J. 290 (2005) (refusing to extend the prohibition on double-dipping to other assets). Stated differently, it would be inequitable for the dependent spouse to surrender the right to share in the other spouse’s pension for purposes of equitable distribution, and then subsequently be able to obtain access to that same asset by having it included “in [the] cash flow for determination of an alimony base.” D’Oro, supra, 187 N.J. Super. at 379.

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1. N.J.S.A. 2A:34-23(b)(13) provides that an asset already subject to equitable distribution as part of a divorce shall not be considered an available resource for purposes of the payment of alimony.

Where the payor spouse has substantial reasons for retiring and the effect on the payee spouse is minimal (due, for example, to other available income, qualifying for social security, or new employment) the balance will be struck in favor of the payor originally appeared on NJ Family Issues on December 21, 2011.

The goal of alimony is to “assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed . . . during the marriage.” Crews v. Crews, 164 N.J. 11, 16 (2000). Nonetheless, courts retain equitable power to modify alimony obligations at any time on a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 145-46 (1980); N.J.S.A. 2A:34-23. In such cases, courts should consider whether the alleged change is “continuing” or merely “temporary,” Innes v. Innes, 117 N.J. 496, 504 (1990), and “whether the agreement or decree has made explicit provision for the change.” Lepis, supra, 83 N.J. at 152. One well-recognized ground for changed circumstances is a decrease in the supporting spouse’s income. Id. at 151; Innes, supra, 117 N.J. at 504.

When establishing or modifying an alimony obligation, a court must consider N.J.S.A. 2A:34-23(b).

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The goal of alimony originally appeared on NJ Family Issues on December 19, 2011.