I still hear people call the 2014 Amendments to the alimony statute “the new statute.” Almost 9 years later, it is no longer new. That said, since that time, there is still not a lot of law interpreting it other than several cases dealing with cohabitation (with another one now pending before the New Jersey Supreme Court.
And despite being almost 9 years old, there remains confusion regarding the impact of retirement on an alimony obligation. A reason for that is that the 2014 amendments address retirement in 3 different ways. First, it is for alimony obligations that arose after the statute was enacted. There is also new provisions related to early retirement. Finally, there are different standards related to retirement for divorces that predate the statute. The most important difference between the p0st-2014 and pre-2014 standards is the the post-enactment standards provide for a rebuttable presumption that alimony should terminate when the payor reaches normal retirement age (for most people at this point, it is 67). There is no presumption for pre-amendment alimony obligations and therefore, it many cases, it is seemingly harder to get out from under the alimony obligation. If noting else, the payor retains the burden of proof, as opposed to the shifting burden to the recipient in post-amendment cases.
And while the statute is seemingly clear, even judges get it wrong sometimes. That is exactly what happened in the case of Sammarco v. Sammarco, an unreported (non-precedential) Appellate Division decision released on February 13, 2023. In that case, the Appellate Division reversed the trial court’s decision to terminate alimony because the post-amendment standard was used to address alimony that was first ordered to be paid, after a trial, in 1999.
The 1999 alimony obligation remained in place until May 2021 when defendant moved to terminate alimony on three grounds: he was seventy-four years old, and beyond retirement age; he had been unemployed since March 2020, surviving solely on his Social Security; and he had medical issues, which impacted his ability to work. The trial court ultimately found that the recipient failed to overcome the rebuttable presumption that the payor/s alimony was to terminate upon his reaching full retirement age. In doing so, the court applied the statutory factors found at NJSA 2A:34-23 (J)(1) – which are the standards to be applied to post-amendment alimony obligations. (J)(1) provides as follows:
There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, except that any arrearages that have accrued prior to the termination date shall not be vacated or annulled. The court may set a different
alimony termination date for good cause shown based on specific written findings of fact and conclusions of law.
The rebuttable presumption may be overcome if, upon consideration of the following factors and for good cause shown, the court determines that alimony should continue:
(a) The ages of the parties at the time of the application for retirement;
(b) The ages of the parties at the time of the marriage or civil union and their ages at the
time of entry of the alimony award;
(c) The degree and duration of the economic dependency of the recipient upon the payor during the marriage or civil union;
(d) Whether the recipient has foregone or relinquished or otherwise sacrificed claims, rights or property in exchange for a more substantial or longer alimony award;
(e) The duration or amount of alimony already paid;
(f) The health of the parties at the time of the retirement application;
(g) Assets of the parties at the time of the retirement application;
(h) Whether the recipient has reached full retirement age as defined in this section;
(i) Sources of income, both earned and unearned, of the parties;
(j) The ability of the recipient to have saved adequately for retirement; and
(k) Any other factors that the court may deem relevant.
The Appellate Division agreed with the recipient’s argument that the court should have applied the factors found at NJSA 2A:34-23 (J)(3), which are the standards that are to be applied to pre-amendment alimony obligations. Those factors are:
When a retirement application is filed in cases in which there is an existing final alimony order or enforceable written agreement established prior to the effective date of this act, the obligor’s reaching full retirement age as defined in this section shall be deemed a good faith
retirement age. Upon application by the obligor to modify or terminate alimony, both the obligor’s application to the court for modification or termination of alimony and the obligee’s response to the application shall be accompanied by current [CISs] or other relevant documents as required by the Rules of Court, as well as the [CIS] or other documents from the date of entry of the original alimony award and from the date of any subsequent modification. In making its determination, the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate:
(a) The age and health of the parties at the time of the application;
(b) The obligor’s field of employment and the generally accepted age of retirement for those in that field;
(c) The age when the obligor becomes eligible for retirement at the obligor’s place of employment, including mandatory retirement dates or the dates upon which
continued employment would no longer increase retirement benefits;
(d) The obligor’s motives in retiring, including any pressures to retire applied by the obligor’s employer or incentive plans offered by the obligor’s employer;
(e) The reasonable expectations of the parties regarding retirement during the marriage or civil union and at the time of the divorce or dissolution;
(f) The ability of the obligor to maintain support payments following retirement, including whether the obligor will continue to be employed part-time or work reduced hours;
(g) The obligee’s level of financial independence and the financial impact of the obligor’s retirement upon the obligee; and
(h) Any other relevant factors affecting the parties’ respective financial positions.
Here, the error was plain and the matter was remanded for discovery and possibly a plenary hearing. One has to wonder whether this will be a pyrrhic victory, at best. The alimony obligation that was terminated was only $118 per week. The case noted that the payor’s only income was Social Security. Maybe discovery will show otherwise or that the payor has amassed substantial assets that will enable him to continue to pay alimony. But if it doesn’t, then years and money will be spent because the trial court didn’t apply the right law in the first place. Given the purported circumstances, that would be truly unfortunate.
Unfortunately, just as in my recent blog post regarding the parental alienation case where the decision of the trial court seemingly had the “right” come, it was reversed due to procedural errors, so to could the ultimately right result be marred by court error.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or email@example.com.