A76

ASSEMBLY, No. 76

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblyman KAVANAUGH and Assemblywoman CRECCO

An Act concerning alimony and amending N.J.S.2A:34-23.

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:

2A:34-23. Pending any matrimonial action brought in this State or elsewhere, or after judgment of divorce 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.

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.

b. In all actions brought for divorce, divorce from bed and board, or nullity the court may award one or more of the following types of alimony: permanent alimony; [or] rehabilitative alimony; or limited duration alimony [or both] to either party[, and in]. 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;

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

(4) The standard of living established in the marriage 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 and custodial responsibilities for children of the party seeking maintenance;

(7) 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;

(8) 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;

(9) 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; and

(10) 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 [rehabilitative or] 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 for a specified limited duration is appropriate. In so doing, the court shall consider and make specific findings on the evidence about factors set forth below. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases involving long-term marriages 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.

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.

(1) In determining whether alimony for a specified limited duration is appropriate, the court shall also consider whether, in lieu of such an award, equitable distribution of the marital property could be used to compensate the potential alimony recipient for the recipient's financial or non-financial contributions to the marriage. If equitable distribution cannot be so used, the court shall then determine whether limited duration alimony is appropriate, and shall make specific findings about the following factors:

(a) The duration of the marriage;

(b) The payor's ability to pay;

(d) The standard of living enjoyed during the marriage.

(e) The contribution of the spouse seeking support to the development and maintenance of the parties' marital standard of living.

(f) The financial and non-financial contributions of the parties to the marriage.

(g) The educational levels, vocational skills and earning capacities of the parties and how they were affected by the marriage.

(h) The economic impact on the parties of the child-rearing responsibilities for children of the marriage.

(i) The distribution of property acquired during the marriage and the ability of either spouse to have acquired such assets without the marriage.

(j) The entitlement of either spouse to enjoy a standard of living comparable to that enjoyed during the marriage, given the parties' financial and non-financial contributions to the development, maintenance and acquisition of income or assets which supported the marital lifestyle.

(k) Whether the parties were economically advantaged or disadvantaged by the marriage.

(l) The income or property brought to the marriage by the parties.

(m) The use and dissipation during the marriage of the parties' pre-marital assets.

(n) The income generated by assets equitably distributed, except for income generated by a share of a retirement benefit treated as an asset and equitably distributed.

(o) The sale of the marital residence and the availability of the proceeds for the parties' use.

(p) Such other factors as the court deems appropriate.

d. In any case in which there is a request for an award of rehabilitative alimony, the court shall consider and make specific findings on the evidence about the above factors. 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. In all actions for divorce 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 or divorce from bed and board 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.

f. In all actions where a judgment of divorce or divorce from bed and board 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. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage by either party by way of gift, devise, or intestate succession shall not be subject to equitable distribution, except that interspousal gifts shall be subject to equitable distribution.

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.

(cf: P.L.1988, c.153, s.3)

2. N.J.S.2A:34-25 is amended to read as follows:

2A:34-25. If after the judgment of divorce a former spouse shall remarry, permanent and limited duration alimony shall terminate as of the date of remarriage except that any arrearages that have accrued prior to the date of remarriage shall not be vacated or annulled. The remarriage of a former spouse receiving rehabilitative alimony shall not be cause for termination of the rehabilitative alimony by the court unless the court finds that the circumstances upon which the award was based have not occurred or unless the payer spouse demonstrates an agreement or good cause to the contrary.

Alimony shall terminate upon the death of the payer spouse, except that any arrearages that have accrued prior to the date of the payer spouse's death shall not be vacated or annulled.

Nothing in this act shall be construed to prohibit a court from ordering either spouse to maintain life insurance for the protection of the former spouse or the children of the marriage in the event of the payer spouse's death.

(cf: P.L.1988, c.153, s.7)

3. This act shall take effect immediately.

STATEMENT

This bill authorizes the courts to award limited duration alimony in certain cases.

Under current law, the courts may award two types of alimony: permanent alimony, which is intended to compensate a spouse for an economic dependency created by the marriage, and rehabilitative alimony, which is intended for specific educational or training purposes and is of short duration. This bill would establish limited duration alimony as a third type of alimony, to be used in those cases involving shorter-term marriages where permanent or rehabilitative alimony would be inappropriate or inapplicable but where, nonetheless, economic assistance for a limited period of time would be just.

The bill provides that, in any case where a party requests an award of permanent alimony, the court would first be required to consider and make specific findings on a number of factors, including the need and ability of the parties to pay, the duration of the marriage, the health of the parties, their standard of living and their earning capacities. After this threshold determination, if the court determines that an award of permanent alimony is not warranted, it would then consider whether limited duration alimony is warranted.

The court would also be required to consider whether, in lieu of a limited duration alimony award, equitable distribution of the marital property could be used to compensate the potential alimony recipient for the recipient's financial or non-financial contributions to the marriage.

The bill sets out specific factors for the court to consider in making the determination whether limited duration alimony is warranted, including, among others:

• The contribution of the spouse seeking support to the development and maintenance of the parties' marital standard of living.

• The financial and non-financial contributions of the parties to the marriage.

• The educational levels, vocational skills and earning capacities of the parties and how they were affected by the marriage.

• The economic impact on the parties of the child-rearing responsibilities for children of the marriage.

• The distribution of property acquired during the marriage and the ability of either spouse to have acquired such assets without the marriage.

• The entitlement of either spouse to enjoy a standard of living comparable to that enjoyed during the marriage, given the parties' financial and non-financial contributions to the development, maintenance and acquisition of income or assets which supported the marital lifestyle.

• Whether the parties were economically advantaged or disadvantaged by the marriage.

• The income or property brought to the marriage by the parties.

• The use and dissipation during the marriage of the parties' pre-marital assets.

The bill specifically provides that the court shall not award limited duration alimony as a substitute for permanent alimony in those cases involving long-term marriages where permanent alimony would otherwise be awarded under current law.

This bill embodies Recommendation 13 of the report of the Commission to Study the Law of Divorce, issued April 18, 1995.

Provides for limited duration alimony.