For better or worse, N.J. looks at divorce and alimony

New Jerseyans seeking to end what they criticize as “lifetime” alimony in the state gathered over the weekend to boost several pending reform bills. If the alimony reform group gets its way, major changes to the state’s guidelines for awarding alimony may be on the horizon.

New Jersey Alimony Reform, which seeks to have the state’s courts modify its guidelines for both alimony and child support systems, scored initial victories over the winter when the Senate and Assembly judiciary committees released a bill that would allow the courts to modify payments when the payer is unemployed or becomes disabled for more than six months or based on other life changes.

The group is also pushing for legislation to establish a commission to recommend comprehensive changes to alimony laws, which its members say are antiquated and out of touch with real world circumstances.

“One member of our group has been jailed 21 times because of his inability to pay,” said Thomas Leustek, founder and director of NJAR. “The injustice is absolutely mind-boggling.”

While a commission might sound innocuous, some lawyers oppose the idea vigorously, worrying it might lead to New Jersey enacting laws similar to those in other states that would impose a formula for payments and take away the latitude judges in New Jersey are allowed to apply when deciding divorce cases.

“There is no guarantee the commission would be impartial,” said Sally Goldfarb, a professor of family law at Rutgers Law School in Camden. “If the commission is stacked, it could lead to outcomes that would not be good for the people of this state.”

Those who pay alimony in New Jersey

Few clear statistics about alimony exist but a look at the state’s records show that while only about 25,000 people out of 280,000 divorced spouses pay alimony in the Garden State, those who do pay a significant sum. (There are 560,000 divorced people in the Garden State, according to the U.S. Census Bureau and there were about 20,000 divorces last year in New Jersey alone.) Child support is much more commonly awarded than alimony in divorce judgments.

In 2009, 25,000 people reported paying $535 million on their state tax returns, according to the state treasury’s Statistics of Income report. (Alimony is deductible in New Jersey.) That’s an average of $21,406 per return. Goldfarb said one estimate found 97 percent of alimony payers to be men.

Contrary to what reform advocates say, alimony is neither permanent nor lifetime in New Jersey. Goldfarb said that, as in most other states, an alimony award is a decision made by a judge based on negotiations between the parties. It can be very short term or it can be indefinite, depending on the circumstances. An ex-spouse’s remarriage, or even in some cases cohabitation, triggers an end to alimony payments.

Growing trend

The movement in New Jersey is part of one that is happening in several other states, including Connecticut and Florida, following the enactment last year of comprehensive alimony reform in Massachusetts. That law puts specific limits on alimony in cases of marriages that last less than a decade and sets up different categories of alimony, for instance, to compensate the ex-spouse who helped support a payer who was in school.

Making their case for the unfairness of the current system, advocates cite numerous cases of spouses, typically men, who are forced to continue paying alimony decades after a divorce and long after retirement or disability to a spouse who they contend never tried to get a job.

Leustek maintained it can take between two and four years after a person loses a job before a judge will relieve him of his responsibility to pay alimony.

“These are well-meaning, hard-working people who have never been in trouble with the law, except that they married badly and lost a job,” he said. “They were unable to pay alimony and a judge put them in jail.”

The situation has become a bigger issue over the past four years, as so many people lost jobs and have been unable to find comparable work, or any job, due to the recession and continuing stagnant economy, Leustek said.

“It seems to be more of a problem now, with people struggling because of the economy,” said Assemblyman Sean Kean (R-Monmouth), co-sponsor of both the measure to create a commission to study larger reforms and the bill to allow for alimony modifications due to unemployment.

Changing the laws

The latter bill, S1388/A685, released in February by the judiciary committees of both houses is a start toward helping those people. A judge could modify alimony payments, as well as those for child support, when a person is out of work for more than six months, provided the payer is truly trying to find another job and is not found to be avoiding work in order to evade making the payments.

Kean, who is a lawyer, said it now takes too long — as long as 10 or 11 months — for a judge to hear a petition seeking a change in alimony due to unemployment.

“From the beginning, for me, it’s a question of fairness,” Kean said, in calling that bill “very benign” in codifying what judges should already be doing. “Sometimes guys end up in jail.”

Brian Schwartz, a family lawyer based in Summit and executive editor of the New Jersey Family Lawyer, a publication of the New Jersey State Bar Association, said that in one respect, the bill does not go far enough.

“Why wait six months? If you’re out of work and know you’re going to be out of work for an extended period, you should go to court right away,” he said.

On the other hand, some people receive substantial severance when they are laid off and would have no problem continuing to make alimony payments, while the ex-spouse can barely afford to continue to pay the mortgage on the home where she still lives with the children. And what are the chances of future employment? For instance, there are many more potential jobs in nursing than for someone laid off from a failed investment banking firm.

“There has to be some kind of balancing,” said Brian Schwartz, who represents people on both sides of a divorce.

Reform advocates say to get that balance, the state needs to set up a Blue Ribbon Commission that includes lawyers and impacted parties to determine what changes should be made.

“The alimony system has not been looked at in decades,” Kean said. “I’ve heard from litigants who believe their rights have been taken away by the legal system.”

The recommendations of a study commission, as called for by competing sets of bills –SJR34/AJR36 and SJR41/AJR32 — is what led to the reform in Massachusetts. The bills would establish a commission that would include lawyers and study for either nine months or a year state alimony rules and suggest legislation to improve the system here.

“We think the system is bad from the get go,” said Leustek, who is divorced. He cited the case of a man who was married for 13 years, but has been paying alimony for 36 years since getting divorced. The man is now ill and in his 70s and has difficulty affording the payments but has to keep paying even though his ex-wife chose not to go back to work.

“This has created a permanently dependent person; it’s like lifetime welfare,” said Leustek, a professor in the department of plant biology and pathology at Rutgers University. “There should be a balance to allow both people to get on with their lives after a divorce.”

But supporters of the current system say that discretion is exactly what is needed because divorce is very individualized and does not fit into a neat formula.

“It’s not true to say that judges enjoy unfettered discretion,” Goldfarb said. “The judge is supposed to take into account certain factors that are delineated in the statutes.”

Like New Jersey, most states give judges discretion, she added.

Brian Schwartz called New Jersey’s current alimony laws “pretty solid” and supports allowing judges to continue to use discretion in dealing with the infinite possibilities that cases present.

For all the cases that may appear to be unfair to payers, there are an equal number to cite that would seem unfair to recipients, which proves how complicated divorce is.

Brian Schwartz said he once represented a woman who was married for less than three years and by guidelines in place in a state like Massachusetts would be eligible for almost no alimony. But at the time of divorce, she was about to deliver triplets and would be forced to care for three children on her own and unable to go to work and support the family.

“Her life was irreparably harmed,” he said.

He cited another case involving a 47-year old woman who was a lawyer and made a good living, but had left the partner track in order to take time to raise a family. At the time of divorce, it was too late for her to try to make partner. By making that choice early on, she guaranteed she would earn only a third of what she could have for the rest of her career.

“That person is entitled to alimony,” he said.

Brian Schwartz said that while the laws may date back decades, they have been subject to updating over the years. The last time a state commission studied divorce law was 1995.

“I don’t think New Jersey is nearly as bad off as we think we are,” he said.

NJAR’s conference, titled “Alimony Reform: Fair Laws for the 21st Century,” was held Saturday at Rutgers University’s Busch Campus Center in Piscataway.

 

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