New Jersey bill would set guidelines for alimony

Posted: December 02, 2013

TRENTON One woman testified that her husband, dying of brain cancer, couldn't persuade a court to let him stop paying alimony to an ex-wife who had a job. Another said her husband went to jail because he was out of work and couldn't afford to pay his alimony.

Alimony payers and spouses, claiming an unfair system had forced them into financial distress - and given former spouses incentive not to support themselves - told story after story last week before a panel of Assembly lawmakers at the Statehouse.

A bill sponsored by Assemblyman Charles Mainor (D., Hudson) would set guidelines for alimony, with formulas determining the length of an award based on the length of a marriage. Modeled after a Massachusetts law passed in 2011, the bill includes a provision that would end alimony payments with the payer's retirement, though a judge could require the payments to be extended under certain circumstances.

New Jersey does not have a formula for deciding the length of alimony, which is not awarded in all divorce cases. Payers now have to petition the court to end awards based on retirement or changed financial circumstances.

Defenders of the state's current approach, including some family law attorneys and groups representing the interests of women, say judges shouldn't be bound by formulas to decide individual cases.

The New Jersey Bar Association family law section and state chapter of the American Academy of Matrimonial Lawyers back a bill sponsored by Assemblywoman Pamela Lampitt (D., Camden) and Assemblyman Thomas Giblin (D., Passaic) that would make some changes in alimony, including a provision that would specify alimony could be terminated or modified upon the payer's retirement.

The bill also would change the term permanent alimony to indefinite.

"We shouldn't make law over one or two exceptions or quirks," said Brian Schwartz, a family law lawyer in Summit who is chair of the bar's family law section.

State court statistics show alimony is awarded in 20 percent to 30 percent of divorce cases, Schwartz said. Anecdotally, he said, permanent alimony awards are "rare" - and the number of people jailed for not paying alimony is "infinitesimal." He petitions courts regularly to get people jailed, "and it never happens," he said.

Schwartz said that even if New Jersey set alimony guidelines that still allowed judges to exercise discretion, judges would rarely deviate from them, given how infrequently they deviate from child-support guidelines. He also said guidelines could lead women in abusive relationships to stay in marriages longer.

Proponents of Mainor's bill - who packed a large hearing room for last week's four-hour hearing before the Assembly Judiciary Committee - say the changes proposed by the bar association in the Giblin and Lampitt bill wouldn't provide enough certainty for alimony payers.

"Every person should be able to walk out of court knowing that there is an ending point," Mainor told the committee. He asked lawmakers to "be a part of not allowing New Jersey to be the state where many people that had a divorce are saying, 'It's cheaper to keep her.' "

Mainor introduced the bill after lobbying by New Jersey Alimony Reform, a group formed in 2011 by Rutgers University biology professor Tom Leustek, who was frustrated by the terms of the alimony he pays.

Leustek said a court agreement after his 2008 divorce required him to pay $2,000 a month in permanent alimony to his former wife, who has a doctorate in psychology but who wasn't earning much shortly before the divorce, when she started a private practice. The award was based on a snapshot of their income from before the divorce, not the entirety of their 24-year marriage, Leustek said.

"I agreed to it. I settled. But I see it more like coercion," Leustek said in a phone interview. "If someone comes up to you in an alleyway with a gun and says, 'Give up your pocketbook,' would anyone say you agreed to give up your pocketbook? That's what divorce is like for the person with exposure to lifetime alimony."

It is not unusual for states to allow indefinite alimony, said Sally Goldfarb, a Rutgers University law professor and expert in family law.

It's also not unusual to leave the terms of alimony to a judge's discretion, she said.

"Traditionally, alimony awards have not been subject to a mathematical formula, in New Jersey or anywhere else," Goldfarb said.

In recent years, however, several states have moved toward formula-based alimony guidelines - spurred by groups like Leustek's.Family law attorneys are split on alimony guidelines, said Maria Cognetti, a lawyer in central Pennsylvania who is president of the American Academy of Matrimonial Lawyers.

"When you don't have guidelines, you are kind of at the mercy of who is your judge and what is their personal take on alimony," Cognetti said in a phone interview.

Proponents of alimony reform say current laws reflect an era when women had fewer opportunities.

"When these laws were originally passed, people were dying in their 60s. Now they're living until their 90s," said Steve Hitner, who led the effort that prompted Massachusetts to rewrite its alimony laws in 2011.

Hitner said he was ordered to pay his wife of 23 years alimony indefinitely after they divorced in 1999. When sales at his printing business declined, he petitioned the court to reduce the payments. He was unsuccessful, fell into debt, and filed for bankruptcy, he said.

"The same person you couldn't live with financially while you were married - you're tied to that person for life," Hitner said.

Kathleen Savage, 48, a dental hygienist from Sewell, said she knew she would have to pay alimony to her ex-husband, who receives disability for a back injury and who hadn't worked for 12 years before their divorce in 2010.

She didn't expect the alimony would be "for the rest of my life or his life, whoever goes first," Savage said in a phone interview.

Leustek, whose group has several thousand members, said he'd heard "legions of horror stories" from people whose requests to reduce alimony payments have been routinely denied by judges.

He's not trying to end alimony, he said; "we're just looking to make it fair."

But for every alimony payer who believes he or she is paying too much, "you can find a person that says they're receiving too little," Goldfarb said.

"Unquestionably, the force behind these changes comes from people paying alimony who would like to pay little or no alimony," she said. "We are not sufficiently hearing the voices of people on the other side of the debate."



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