Alimony: There Are More Types Than You Think!
If you have done any reading about alimony you have probably learned there are five (5) kinds of alimony recognized as part of laws of the State of New Jersey: permanent, rehabilitative, limited duration, reimbursement and pendente lite. What you may not know is there are other kinds of alimony which attorneys may use to help settle your case. These include trust alimony, lump sum alimony and equitable alimony.
Family law grows on a daily basis. We have statutes which are created by the legislature and we have a body of case law which evolves as a result of decisions written by Judges. Many of these decisions are published and used by Judges and attorneys as precedents to help support a particular legal position. The need for different types of alimony has grown as society has changed. Sometimes the law is ‘behind the times.’ In certain instances it may take many years for the law to catch up with the norms of society. Alimony is a concept which has changed drastically over the past thirty years.
Our alimony statute sets forth a list of thirteen factors a court must consider when determining whether an individual is entitled to alimony, how much and how long. The courts have the authority to determine what type or types of alimony are appropriate to order in any particular case. However, the courts cannot go beyond the law, whether it be statutory law or case law. The following are the kinds of alimony which are part of our laws in New Jersey:
(1) Permanent alimony – This type of alimony is usually appropriate in long term marriages, but is subject to modification based upon changed circumstances. Permanent alimony terminates upon the death of either party or remarriage. It is subject to termination or reduction if the supporting spouse is cohabiting with another person;
(2) Rehabilitative alimony – This type of alimony is appropriate to assist the supported spouse in becoming self-sufficient. The payee spouse must provide a detailed plan which shows the scope of rehabilitation, the steps to be taken, the time frame and for what period of time. An award of rehabilitative alimony may be modified based upon a change of circumstances, or upon the nonoccurrence of circumstances that the court found when it entered the award;
(3) Limited duration alimony (LDA) – Limited duration alimony is appropriate in situations in which the supported spouse is not in need of rehabilitation, but where his not appropriate to order permanent alimony. The payee spouse receives an award of alimony in a specified amount for a specified period of time. Limited duration alimony is subject to modification under unusual circumstances or where there is a nonoccurrence of circumstances that the court determined would occur at the time of the award;
(4) Reimbursement alimony – Reimbursement alimony is awarded in situations where one spouse may have paid for the costs of the other spouse’s education, or supported the spouse while she or he obtained education.
(5) Pendente lite alimony – This type of alimony is awarded while your divorce case is pending. The purpose of the award is maintain the financial status quo. In addition to ordering a specified amount of money to be paid by the payer spouse, the court can order the supporting spouse to pay direct expenses such as the mortgage, utilities, insurances and other direct expenses. The court has great flexibility to order what is necessary for the family during the pendency of your case.
When the court determines the appropriate kind(s) of alimony to award, it must note specifically that if an award of permanent alimony is not appropriate, why is it not appropriate. Limited duration alimony is not to be used as a substitute for permanent alimony.
The five types of alimony above are identified in the New Jersey alimony statute. For years attorneys settled cases using ‘term’ alimony before limited duration alimony was adopted by the legislature. For years attorneys utilized rehabilitative alimony as a substitute for limited duration alimony, as well. Before the law caught up with the reality of how family lawyers were resolving their cases, attorneys had to be creative to meet the needs of their clients.
Courts in New Jersey have fashioned different kinds of alimony to meet the special needs of a supported spouse. In Jacobitti v. Jacobitti, 263 N.J. Super. 608 (Ch. Div. 1993), the Courts used a trust to assure an elderly and infirm supported spouse would receive her alimony.
Attorneys sometimes settle cases with one of the patties paying a lump sum of money to the payee spouse which may be labeled as alimony or the distribution of marital property. Courts may not have the authority to enter such an award. The award may be structured to offer one of the parties additional tax benefits which may have not been available under a traditional award of alimony.
Attorneys are in a position to fashion equitable forms of alimony to meet the needs of the litigants. As example only, alimony is generally tax deductible to the payer spouse and included as income to the payee spouse. Parties have the flexibility to ‘re-label’ child support as alimony or vice-a-versa. Sometimes settlements can be structured in a manner which is favorable to both parties. Again, courts may not be in the position to enter such awards.
You need an attorney who knows the law and how the law can work for you. An attorney needs to be creative to provide the kind of representation you need. ‘Cookie cutter’ solutions are not the best answer to. a client’s problems. If you have questions about alimony or any other issues related to your case, please give me a call.
Information provided by:
Robert S. Dorkin, Esq.