CHAPTER 43

 

An Act concerning divorce and decedents, revising various parts of the statutory law, and supplementing Title 3B of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    N.J.S.2A:34-23 is amended to read as follows:

 

Alimony, maintenance.

     2A:34-23.  Alimony, maintenance.

     Pending any matrimonial action or action for dissolution of a civil union brought in this State or elsewhere, or after judgment of divorce or dissolution or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the nature of the case shall render fit, reasonable and just, and require reasonable security for the due observance of such orders, including, but not limited to, the creation of trusts or other security devices, to assure payment of reasonably foreseeable medical and educational expenses. Upon neglect or refusal to give such reasonable security, as shall be required, or upon default in complying with any such order, the court may award and issue process for the immediate sequestration of the personal estate, and the rents and profits of the real estate of the party so charged, and appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate, or so much thereof as shall be necessary, to be applied toward such alimony and maintenance as to the said court shall from time to time seem reasonable and just; or the performance of the said orders may be enforced by other ways according to the practice of the court. Orders so made may be revised and altered by the court from time to time as circumstances may require.

     The court may order one party to pay a retainer on behalf of the other for expert and legal services when the respective financial circumstances of the parties make the award reasonable and just.  In considering an application, the court shall review the financial capacity of each party to conduct the litigation and the criteria for award of counsel fees that are then pertinent as set forth by court rule.  Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issue then before the court and shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party. The court may not order a retainer or counsel fee of a party convicted of an attempt or conspiracy to murder the other party to be paid by the party who was the intended victim of the attempt or conspiracy.

     a.     In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:

     (1)   Needs of the child;

     (2)   Standard of living and economic circumstances of each parent;

     (3)   All sources of income and assets of each parent;

     (4)   Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;

     (5)   Need and capacity of the child for education, including higher education;

     (6)   Age and health of the child and each parent;

     (7)   Income, assets and earning ability of the child;

     (8)   Responsibility of the parents for the court-ordered support of others;

     (9)   Reasonable debts and liabilities of each child and parent; and

     (10) Any other factors the court may deem relevant.

     The obligation to pay support for a child who has not been emancipated by the court shall not terminate solely on the basis of the child's age if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent.  The obligation to pay support for that child shall continue until the court finds that the child is relieved of the incapacity or is no longer financially dependent on the parent.  However, in assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in this section, the child's eligibility for public benefits and services for people with disabilities and may make such orders, including an order involving the creation of a trust, as are necessary to promote the well-being of the child.

     As used in this section "severe mental or physical incapacity" shall not include a child's abuse of, or addiction to, alcohol or controlled substances.

     b.    In all actions brought for divorce, dissolution of a civil union, divorce from bed and board, legal separation from a partner in a civil union couple or nullity the court may award one or more of the following types of alimony: permanent alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony to either party.  In so doing the court shall consider, but not be limited to, the following factors:

     (1)   The actual need and ability of the parties to pay;

     (2)   The duration of the marriage or civil union;

     (3)   The age, physical and emotional health of the parties;

     (4)   The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

     (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)   The parental responsibilities for the children;

     (8)   The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;

     (9)   The history of the financial or non-financial contributions to the marriage or civil union 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, to the extent this consideration is reasonable, just and fair;

     (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, including the designation of all or a portion of the payment as a non-taxable payment; and

     (13) Any other factors which the court may deem relevant.

     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.

     c.     In any case in which there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the above factors.  If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor.  The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement.  In so doing, the court shall consider and make specific findings on the evidence about factors set forth above.  The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.

     An award of alimony for a limited duration may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award.  The court may modify the amount of such an award, but shall not modify the length of the term except in unusual circumstances.

     In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.

     d.    Rehabilitative alimony shall be awarded based upon a plan in which the payee shows the scope of rehabilitation, the steps to be taken, and the time frame, including a period of employment during which rehabilitation will occur.  An award of rehabilitative alimony may be modified based either upon changed circumstances, or upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award.

     This section is not intended to preclude a court from modifying permanent alimony awards based upon the law.

     e.     Reimbursement alimony may be awarded under circumstances in which one party supported the other through an advanced education, anticipating participation in the fruits of the earning capacity generated by that education. 

     f. Except as provided in subsection i., nothing in this section shall be construed to limit the court's authority to award permanent alimony, limited duration alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination, as warranted by the circumstances of the parties and the nature of the case.

     g.     In all actions for divorce or dissolution other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.  In all actions for divorce, dissolution of civil union, divorce from bed and board, or legal separation from a partner in a civil union couple where judgment is granted on the ground of institutionalization for mental illness the court may consider the possible burden upon the taxpayers of the State as well as the ability of the party to pay in determining an amount of maintenance to be awarded.

     h.     Except as provided in this subsection, in all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage or civil union by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts or gifts between partners in a civil union couple shall be subject to equitable distribution. The court may not make an award concerning the equitable distribution of property on behalf of a party convicted of an attempt or conspiracy to murder the other party.

     i.      No person convicted of Murder, N.J.S.2C:11-3; Manslaughter, N.J.S.2C:11-4; Criminal Homicide, N.J.S.2C:11-2; Aggravated Assault, under subsection b. of N.J.S.2C:12-1; or a substantially similar offense under the laws of another jurisdiction, may receive alimony if:  (1) the crime results in death or serious bodily injury, as defined in subsection b. of N.J.S.2C:11-1, to a family member of a divorcing party; and (2) the crime was committed after the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy.  Nothing in this subsection shall be construed to limit the authority of the court to deny alimony for other bad acts.

     As used in this subsection:

     “Family member” means a spouse, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother, or half sister, whether the individual is related by blood, marriage, or adoption.

 

     2.    Section 4 of P.L.1988, c.153 (C.2A:34-23.1) is amended to read as follows:

 

C.2A:34-23.1  Equitable distribution criteria.

     4.    In making an equitable distribution of property, the court shall consider, but not be limited to, the following factors:

     a.     The duration of the marriage or civil union;

     b.    The age and physical and emotional health of the parties;

     c.     The income or property brought to the marriage or civil union by each party;

     d.    The standard of living established during the marriage or civil union;

     e.     Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;

     f.     The economic circumstances of each party at the time the division of property becomes effective;

     g.     The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;

     h.     The contribution by each party to the education, training or earning power of the other;

     i.      The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;

     j.     The tax consequences of the proposed distribution to each party;

     k.    The present value of the property;

     l.      The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;

     m.    The debts and liabilities of the parties;

     n.     The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;

     o.    The extent to which a party deferred achieving their career goals; and

     p.    Any other factors which the court may deem relevant.

     In every case, except cases where the court does not make an award concerning the equitable distribution of property pursuant to subsection h. of N.J.S.2A:34-23, the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including specifically, but not limited to, the factors set forth in this section.

     It shall be a rebuttable presumption that each party made a substantial financial or nonfinancial contribution to the acquisition of income and property while the party was married.

 

     3.    N.J.S.3B:5-4 is amended to read as follows:

 

Intestate shares of heirs other than surviving spouse or domestic partner.

     3B:5-4.  Intestate shares of heirs other than surviving spouse or domestic partner.

     Any part of the intestate estate not passing to the decedent's surviving spouse or domestic partner under N.J.S.3B:5-3, or the entire intestate estate if there is no surviving spouse or domestic partner, passes in the following order to the individuals designated below who survive the decedent:

     a.     To the decedent's descendants by representation;

     b.    If there are no surviving descendants, to the decedent's parents equally if both survive, or to the surviving parent, except as provided in section 4 of P.L.2009, c.43 (C.3B:5-14.1);

     c.     If there are no surviving descendants or parent, to the descendants of the decedent's parents or either of them by representation;

     d.    If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent, or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half;

     e.     If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation;

     f.     If there are no surviving descendants of grandparents, then the decedent's step-children or their descendants by representation.

 

C.3B:5-14.1 “Minor” defined; loss of right to intestate succession by parent, certain circumstances.

     4. a. As used in this section, “minor” means a person under the age of 18 years.

     b.    A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate and all right to administer the estate of the decedent if:

     (1)   The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death;

     (2)   The parent was convicted of committing any of the following crimes against the decedent:

     (a)   N.J.S.2C:14-2, Sexual Assault.

     (b)   N.J.S.2C:14-3, Criminal Sexual Contact.

     (c)   N.J.S.2C:24-4, Endangering Welfare of Children;

     (3)   The parent was convicted of an attempt or conspiracy to murder the decedent; or

     (4)   The parent abused or neglected the decedent, as defined in subsection c. of section 1 of P.L.1974, c.119 (C.9:6-8.21), and the abuse or neglect contributed to the decedent’s death.

     c.     If a parent is disqualified from taking a distributive share in the estate of a decedent under this section, the estate shall be distributed as though the parent predeceased the decedent.

 

     5.    This act shall take effect on the first day of the third month following enactment.

 

     Approved April 15, 2009.