Divorce Different

by Jef Henninger, Esq. Serving all of New Jersey.

Archive for January, 2010

Permanent alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In New Jersey, courts have moved away from permanent alimony.  However, with much longer marriages, permanent alimony is still available.

An understanding of the purpose of permanent alimony lends further insight into the proper use and application of limited duration alimony. The most commonly expressed rationale for permanent alimony is:
            1. To compensate for benefits conferred on the other spouse by being responsible for homemaking and child rearing. The primary benefit is increased earning capacity of the other spouse who, while enjoying family life, was free to devote all productive time to income production.

            2. To compensate for the opportunity costs of homemaking. This is primarily lost earning capacity through the years of major responsibility for the home, either not being employed or holding employment subject to the needs of the family. Courts recognize this opportunity cost when they refer to the fact that the claimant for alimony had remained in the home in the traditional role of full-time homemaker. There is, also, a cost in lessened opportunity for remarriage which is greater for women than men and which increases the longer the marriage lasts.

            In short, “a transfer of earning power” occurs during a traditional marriage in which the homemaker spouse’s efforts increased the other’s earning capacity at the expense of her own. Alimony is an award formulated to compensate for that transfer by sufficiently (fairly) meeting reasonable needs for support not otherwise met by property division and personal income.

        [Krauskopf, Rehabilitative Alimony, at 583-84 (footnotes omitted).]

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Limited duration alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In Cox v. Cox, the Appellate Divison extensively discussed the legislative amendment that added limited duration alimony as an option:

 Limited duration alimony is not intended to facilitate the earning capacity of a dependant spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

 

[335 N.J. Super. at 476.]

 

Limited duration alimony is thus awarded in recognition of a dependent spouse’s contributions to a relatively short-term marriage that demonstrated attributes of a “marital partnership.” Id. at 483. Both limited duration and permanent alimony reflect the policy that marriage is an economic and social partnership and that the financial and non-financial contributions of both spouses should be recognized. Id. at 479. “All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is warranted and awarded.” Id. at 483.

In recognizing the need for limited duration alimony, the Legislature focused “‘upon the economic impact of the marriage on the parties by examining whether employment opportunities were lost or career opportunities delayed.’” Id. at 481 (quoting Report of the Commission to Study the Law of Divorce, Recommendation 13 at 46-47 (April 18, 1995)). It was contemplated that a court would determine whether

“any economic dependency that might exist between the parties was created by the marriage or was the product of the parties’ disparate skills and educational opportunities, unrelated to anything that happened during the marriage. The court’s inquiry would focus not on the fact that the parties were married but upon the impact of the marriage on the parties . . . . [and on] whether either of the parties were economically disadvantaged by child-rearing responsibilities for children of the marriage.”

 

[Ibid. (quoting Report of the Commission, supra, Recommendation 13 at 46-47).]

 

The Divorce Study Commission found that limited duration alimony was not intended to be a replacement for permanent alimony “‘where the length of the marriage and the contributions made by the dependent spouse are significant. In particular, it is singularly inappropriate in long marriages.’” Id. at 482 (quoting Report of the Commission, supra, Recommendation 13 at 47 (footnote omitted)). The Commission was of the “unequivocal view” that limited duration alimony “should be limited to shorter marriages and not be ordered in long-term marriages.” Ibid.

In Gordon v. Rozenwald, 380 N.J. Super. 55, 61 (App. Div. 2005), this court had the opportunity to consider the purpose of limited duration or term alimony in the context of a motion to modify the term alimony provision of a negotiated matrimonial agreement. The parties had been married fifteen years at the time of the final separation and had two children. Id. at 61-62. At the time of divorce, the agreement negotiated by the parties contained a fifteen-year term alimony provision. Id. at 62. During the marriage, the husband was financially successful and the wife did not work. Ibid. Following dissolution of the marriage, the husband’s earnings soared. Id. at 63. Although the wife worked, the earnings of the parties were grossly disparate. Ibid.

We observed that “[l]imited duration alimony is available to a dependent spouse who made ‘contributions to a relatively short-term marriage that . . . demonstrated the attributes of a marital partnership’ and has the skills and education necessary to return to the workforce.” Id. at 65-66 (quoting Cox, supra, 335 N.J. Super. at 483. We noted that such a spouse is not entitled to permanent alimony because the commitment to the marital enterprise was not sustained and the period of economic dependency was not prolonged. Ibid. We also commented that

[t]he premise for a term of limited duration alimony under N.J.S.A. 2A:34-23c is primarily historical not predictive and it is not based upon estimates about financial circumstances at the time of termination. Thus, the end date of a term of limited duration alimony is the equivalent of an arrangement to terminate support at a predetermined time or event, regardless of need.  

 

[Id. at 68.]

 

In Cox, supra, we held that limited duration alimony was not appropriate following a twenty-two year marriage. 335 N.J. Super. at 469-70. There, the wife was employed during the marriage and eventually enrolled in law school, passed the bar, and obtained a position as an associate in a law firm. Id. at 470. The husband earned substantially more than his wife throughout the marriage. Ibid.

In the course of this opinion, we sought to distinguish the four forms of alimony authorized by the Legislature: permanent alimony, limited duration alimony, reimbursement alimony, and rehabilitative alimony. Id. at 476. As to limited duration alimony, we said:

Limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate. Those circumstances stand in sharp contrast to marriages of long duration where economic need is also demonstrated. In the former instance, limited duration alimony provides an equitable and proper remedy. In the latter circumstances, permanent alimony is appropriate and an award of limited duration alimony is clearly circumscribed, both by equitable considerations and by statute.

 

[Ibid.]

 

We also instructed trial judges to consider the underlying policy considerations that distinguish the forms of alimony when the judge must fashion an appropriate alimony award. Id. at 479. We concluded saying that “[p]ermanent and limited duration alimony, by contrast, reflect the important policy of recognizing that marriage is an adaptive economic and social partnership, and an award of either validates that principle.” Ibid. Limited duration alimony provides flexibility for those situations when no alimony or permanent alimony would be unjust. Id. at 480.

The “defining distinction” between permanent and limited duration alimony is the length of the marriage. Id. at 483. Here, the judge referred to various periods that the parties were together, ranging from slightly more than seven years (from date of marriage to date of separation) to ten and one-half years (from date of cohabitation to date of filing of complaint). The judge correctly referred to the marriage as one of neither long nor short duration, although the term is decidedly closer to being considered one of short duration. See Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998) (ten-year marital relationship cannot be considered short-term by today’s standards). We also agree that a marriage of intermediate duration may justify alimony particularly when one of the spouses was financially dependent on the other spouse for all or a substantial part of the marriage. Id. at 33. Financial dependency, however, does not dictate an award of permanent alimony in all instances.

Both permanent and limited duration alimony serve the same goals and are designed to enable the supported spouse to maintain a lifestyle reasonably comparable to the one enjoyed while the family was intact. Steneken, supra, 183 N.J. at 298-99. In the case of limited duration alimony, however, the court makes a determination, based primarily on the length of the parties’ marriage and the spouses need for support. It is not based on predictions of financial circumstances at the time of termination. Gordon, supra, 380 N.J. Super. at 68.

The decision to award permanent rather than limited term alimony in this case seems to have been predicated on plaintiff’s inability to ever earn enough income to maintain the marital lifestyle on her own. In certain situations this is appropriate. See Robertson v. Robertson, 381 N.J. Super. 199, 207-08 (App. Div. 2005) (thirty-nine year old woman who surrendered employment opportunities entitled to permanent alimony after twelve-year marriage); McGee v. McGee, 277 N.J. Super. 1, 14-15 (App. Div. 1994) (fifty-seven year old unskilled and unemployed woman entitled to permanent alimony after relatively short-term marriage but economic dependence commencing prior to the marriage). This factor, however, is relevant only in the determination of the length of the limited duration alimony. In fact, to treat the time needed for the recipient to improve her earning capacity as anything other than a factor to determine the appropriate term of the alimony award, obscures the difference between rehabilitative and limited duration alimony. Cox, supra, 335 N.J. Super. at 481. In this particular case, because of defendant’s very high earnings and the comfortable lifestyle the parties enjoyed, the judge’s assessment that plaintiff will probably never be able to achieve that lifestyle on her own is undoubtedly correct. Given the unique facts of this case, however, a permanent alimony award is not appropriate.

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Reimbursement alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In Cox v. Cox, the New Jersey Appellate Division explained reimbursement alimony in New Jersey as follows:

Reimbursement alimony has previously been characterized as “not truly support but an equitable creation designed to eliminate injustice.” Louis, Limited Duration Alimony, supra, at 137. See Mahoney, supra, 91 N.J. at 500-01, 503 & n.5. It is intended to compensate a spouse who has made financial sacrifices resulting in a reduced standard of living by enabling the other spouse to forego gainful employment while securing an advanced degree or professional license to enhance the parties’ future standard of living. Id. at 500-01; N.J.S.A.Reimbursement alimony is thus limited to “monetary contributions made with the mutual and shared expectation that both parties to the marriage will derive increased income and material benefits.” Mahoney, supra, 91 N.J. at 502-03. See also Reiss v. Reiss, 200 N.J. Super. 122, 125 (Ch. Div. 1984), aff’d, 205 N.J. Super. 41 (App. Div. 1985) (questioning whether reimbursement alimony is truly alimony as it based primarily on past contributions rather than future needs). As in the case of rehabilitative alimony, reimbursement alimony may be awarded separately or in combination with any other form of alimony. N.J.S.A. 24:34-23f.

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Rehabilitative alimony in New Jersey

Posted by jefhenninger on January 31, 2010

In Cox v. Cox, the New Jersey Appellate Division explained rehabilitative alimony in New Jersey:

 Rehabilitative alimony permits a short-term award “from one party in a divorce [to] enable [the] former spouse to complete the preparation necessary for economic self-sufficiency,” Hill v. Hill, 91 N.J. 506, 509 (1982); Milner v. Milner, 288 N.J. Super. 209, 213-14 (App. Div. 1996), “and ceas[es] when the dependent spouse is in a position of self-support,” Hughes v. Hughes, 311 N.J. Super. 15, 31 (App. Div. 1998). Rehabilitative alimony thus represents an appropriate remedy where, for example, “a spouse who gave up or postponed her own education to support the household requires a lump sum or a short-term award to achieve economic self-sufficiency.” Mahoney, supra, 91 N.J. at 504. Its purpose is to “enhance and improve the earning capacity of the economically dependant spouse.” Frank Louis, Limited Duration Alimony, 11 N.J. Fam. Law. 133, 135 (1991). The focus of rehabilitative alimony is upon the ability of a dependant spouse to engage in gainful employment, combined with the length of the marriage, the age of the parties, Heinl, supra, 287 N.J. Super. at 346-48, and the spouse’s ability to regain a place in the workplace, Cerminara v. Cerminara, 286 N.J. Super. 448, 460 (App. Div.), certif. denied, 144 N.J. 376 (1996). It is not to be considered an exclusive remedy, as “[r]ehabilitative alimony in addition to permanent alimony is favored, where appropriate.” Hughes, supra, 311 N.J. Super. at 32.

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Break the log jam by pushing it to the side

Posted by jefhenninger on January 16, 2010

A settlement negotiation is often like putting a puzzle together.  You have all of these pieces that have to eventually fit together and when the puzzle is solved, the case is over.  When there are many pieces left to put together, one of them can bog down the entire case.  As a result, nothing gets accomplished and the puzzle is not even close to completion.  In other words, there is a log jam.

The funny thing about log jams is that they are often not the most important issue to the case, at least to a rationale observer.  Instead, they are often one of the most emotional issues in the case and thus, you have a fairly unimportant issue bogging down the case. Of course, there are times when the most major issue is holding up the case.

Regardless of why the log jam exists, it has to be cleared or the case will drag on.  Some puzzle pieces are linked to each other.  In other words, you’ll only give up one piece in exchange for another.  So, in order to break the log jam you first need to figure out what pieces are related to the piece that is causing the jam.  If you cannot separate these pieces, they are also part of the log jam.

Once you have figured out the real problem spots, see what is left on the table.  Push the log jam to the side and work out those issues.  If you can start to agree on the balance of the issues you will both see that the two of you can come to an agreement without going through World War 3.  Hopefully, this will create some momentum so that when the only issues left are the log jam issues, you will re-examine your original position on these tough issues.

While it may not work every time, I have seen time and time again how those tough issues that threatened to derail the whole case became complete non-issues once the parties have pushed it aside for a while only to return to it after having worked through the other issues in the case.  

There are any number of reasons for why this occurs, but one explanation is that the more two people fight about an issue, the more they dig in their heals.  Instead of fighting over an asset in the divorce case, they are actually just fighting each other.  Conceding their position in anyway is a sign that the other party beat them down into submission because they are weak which neither side wants, so the fight continues. 

Pushing the log jam to the side stops the fight and shows both parties that they can work together to come to an agreement.  Now that emotions and nerves are calm, they can re-examine their positions from a rationale posture.

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The Cost of a New Jersey Divorce

Posted by jefhenninger on January 16, 2010

When it comes to divorce, there is one question that everyone asks no matter what their situation is.  How much will my divorce cost?  In other words, how much will your final bill be?  It is a question that is impossible to answer. 

Many people get concerned due to the horror stories that they have heard from friends and family about how they spent tens of thousands of dollars in legal fees associated with their New Jersey divorce case.  In my opinion, it is unethical to give any type of estimate since there is no way that I can predict the future as to what you will do and what your spouse and his/her lawyer will do.  There are just too many variables.

If you believe that you need a lawyer for your divorce, then you cannot escape some legal fees.  I tell my clients several things to give them a few ideas about what the final bill may look like.  First, our goal is to get the best possible result for the best possible price.  I think this only makes sense because if you spend $30,000 to fight over something that is worth $10,000, you are out $20,000.  That was not a great result in the end was it?

I also explain that we are looking to set up life-long relationships with our clients.  We want to be the go-to lawyers for all of your legal needs for you and your family.  We can’t exactly do this if you feel that your bill was artificially inflated.  Thus, we have a long-term financial interest in keeping your bill reasonable.

Furthermore, I teach my clients how to save money.  Some of those tips are on this blog.  Who else does this?  Not too many lawyers that I know.  Finally, I explain that a majority of my divorce cases settle for less than what another lawyer may take as an initial retainer.

In the end, while I cannot guarantee a final cost, I can assure them that my office will do whatever it takes to make sure that at the end of the case, they will feel that my representation was not only worth the money, but that the cost was reasonable.

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Getting your spouse to pay for your lawyer

Posted by jefhenninger on January 16, 2010

It seems like no one ever wants to pay for their own divorce lawyer.  I often get asked if the other spouse can reimburse them for counsel fees.  Since almost every case settles, that is something the other side would have to agree to.  I suggest you speak to your lawyer about that but it rarely happens.

The more important issue is what to do if you cannot afford a lawyer because your spouse is the one with all the money.  In New Jersey, you can file a motion (through a lawyer or on your own) to have the Court order your spouse to pay for your counsel fees subject to equitable distribution.  That means that while the spouse must give you the money now, you may have to pay that back, usually via an offset, at final settlement. 

Of course, if your spouse already has a lawyer, the best course of action may be to have your prospective lawyer call the other lawyer to try to resolve this out of court. 

Finally, in order for all of this  to work, you must show that you cannot afford a lawyer.  Bringing this motion just because your spouse makes more than you may be a very bad idea if it is shown that you have the income/assets to afford representation.

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How long does it take to divorce in New Jersey?

Posted by jefhenninger on January 3, 2010

In New Jersey, there is no real time limit to a divorce but it will end at some point even if it doesn’t seem like it.  New Jersey courts are “graded” based upon how fast they move cases.   The cut off mark for a New Jersey divorce case is one year.  Of course, there are plenty of cases that drag on for two years or more.  Thus, I would say the average case takes 9 to 12 months to settle. 

However, in my practice, I prefer to settle cases in 3 to 6 months.  I have settled cases in a matter of weeks, but that is a rare event.  What really eats up a lot of time is the production of discovery.  If both sides keep good records and can exchange all discovery in a few weeks, than most cases can settle within 3 months.   

There is almost never a delay with the court.  I can call up most judges and get into court within a week to put through a settlement.  Courts are happy to move another case off the calendar.  Thus, the length of your divorce case will depend, largely on you and your spouse.  If you want it to move quickly, you can both make sure it will.

Jef Henninger, Esq. is a Monmouth County divorce attorney with offices in Eatontown, Red Bank and Freehold.  If you are ready to divorce different, call the divorce different attorney today to discuss your Monmouth County divorce case.

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Stay in touch with your divorce lawyer

Posted by jefhenninger on January 3, 2010

So many people just want the divorce over right away and who can blame them?  However, I’ve had several clients that just went MIA on me.  There’s no one explanation for it as every one of them had something different to say.  I try to work as efficiently as possible on all of my cases but this is hampered when I cannot reach my client.

As a result of not being able to reach the client, an attorney has to waste time trying to get a hold of a client.  When the other side calls, the conversations are less productive because the client’s position on several issues may be unknown.  This all creates extra work that the client pays for.  In addition, the longer a case drags on, the more expensive the case can get with regard to house hold bills, credit cards and other expenses that would cease had the case been settled earlier.

So, keep in touch with your divorce lawyer at all times.  If you change your number, let your lawyer know.  If you are going on vacation, tell your lawyer ahead of time.  Also be sure to check your mail every day.

Jef Henninger, Esq is a New Jersey divorce lawyer that can represent you in any court in New Jersey, including Morris County, Warren County and Sussex County.  If you are ready to divorce different in New Jersey, call us today.

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