As a lawyer, I love "new law". When the legislature enacts a new statute or law that impacts my practice, it can be fun. It mixes things up. If the law never changed or evolved there would be very little to legitimately debate on a daily basis. New law creates opportunity for people, and it creates new argument for lawyers. The Alimony Reform Act of 2014 is "new law". Although the Reform Act is about 17 months old, it is still considered "new", and it created opportunity for retirees to end their alimony obligation. It also created arguments for lawyers.
Prior to the Alimony Reform Act
of 2014, an obligor who desired to retire was nevertheless still obligated to
pay spousal support pursuant to the existing Order for support unless he or she could
establish, in the eyes of the Court, that the advantage to the retiring payor spouse
substantially outweighed the disadvantage to the payee. Many obligors felt trapped in an obligation
such that they could never fully retire or slow down to enjoy the sunset of
their lives. The Alimony Reform Act,
approved on September 10, 2014, sought to provide relief for retirees strapped with a permanent alimony obligation. The Reform Act, which amended the existing statute, N.J.S.A. 2A:34-23, added an entirely
new subsection devoted to retirement.
N.J.S.A. 2A:34-23 (j)(1) states that there shall be a rebuttable presumption that
alimony shall terminate upon the obligor spouse or partner attaining full
retirement age. "Full retirement
age” is defined by the Social Security Administration and depends upon the year of one’s
birth. Currently, for obligors who were born in 1960
or later, full retirement age is defined as age 67. This rebuttable presumption only applies to divorces that take place after the effective date of the Act. Importantly, notice that the presumption of termination can be overcome. The statute and its new subsection (j)(1) sets forth several factors that an obligee (the spouse who receives the alimony payment) can argue for a continuation of alimony despite the payor's retirement. The new subsection of the statute, at (j)(2) also addresses the situation when a payor desires to retire "early"; as in, prior to their defined full retirement age. That analysis requires the Court to evaluate a different set of factors.
But what about situations where the alimony award was entered prior to the effective date of the Act? (In other words, all of the divorces granted before September 10, 2014) The Reform Act sought to address that issue too and set forth yet another list of factors that a court must consider under subsection (j)(3).
As lawyers, we thought we understood it. Even though there was no caselaw yet interpreting the statute, the language of the new subsection (j) seemed clear. But in November 2015, the New Jersey Appellate Division decided a case that left family lawyers scratching our heads in puzzlement. The results of that case caused confusion as to which part of the statue applied in retirement cases. It was (and is) a big deal because there are different standards and burdens of proof depending upon which part of the statute is applicable in a given circumstance. Yesterday, February 22, 2016, we received clarity. The Appellate Division decided another case and specifically delineated which part of a statute applies.
The bottom line is this: if you pay alimony and want to retire and terminate your support obligation, you can. There is a way out. There is a light at the end of the tunnel. You just need to make the right argument to the Court. A good lawyer, knowledgeable on the law and its new developments, will know which factors of the statute apply to your case and will make an effective argument on your behalf.
For more information or to schedule a consultation, I can be reached at 609-601-6600. For daily posts with interesting articles and links, "Like" my professional Facebook page.
Have a great day,
Stephanie
