New Jersey Divorce Lawyer Blog
On September 10, 2014, the New Jersey alimony laws changed, making a serious change on the prior state of the law. One seemingly small part of the statute now creates a scenario whereby it is presumed that alimony will terminate upon retirement, unless the person receiving alimony proves that it should not be terminated. The new law has shifted what is called the “burden of proof.” The earlier statute put the burden on the person paying alimony to prove termination of alimony was the correct result, now, the burden is shifted to the one receiving the alimony to prove it should not end.
The changes discussed are those where full retirement age has been reached and not situations dealing with early retirement. A reduction of income based upon what is often referred to as “good faith retirement,” after age 65, has long been considered a change of circumstances that warrant Court review of the financial situation of the parties to determine whether modification of the alimony award is appropriate.
The New Jersey Appellate Division had the opportunity to explain when portions of the new statute, NJ 2A:34-23(j), must be applied. In the case of in the case of Landers v. Landers. The Court made clear that subsection (j)(3) sets the standard for to be applied to final alimony awards issued prior to the amendment, placing the burden of proof on the party receiving alimony to show the modification or termination should not be granted.
In Landers, the lower Court applied the wrong set of standards for an alimony award established prior to September 10, 2014. Specifically, the lower court wrongly applied the (j)(1) standards, not the necessary (j)(3) standards, and the Appellate Division vacated the lower court’s order, and sent it back to the lower court for a new decision based upon the application of the proper section of NJ 2A: 34-23(j).
NJ 2A:34-23 (j)(3), the provision for pre-amendment alimony awards provides a list of standards require both parties to supply not only current Case Information Statements (CIS), but both parties’ CIS from the time of original entry of the judgment establishing the alimony award, and CIS forms from any and all modifications of the alimony award. In addition, not set forth in the list of required considerations, but rather in the primary language of the provision, is the consideration of the ability of the person receiving alimony to have saved “adequately for retirement.” The placement of this provision where it is gives it a much higher level of consideration than in provision (j)(1), the post-amendment section.
Though (j)(1) includes the obligee’s ability to have saved, it is merely one of the considerations in the list of eleven (11) considerations to which the court can apply whatever weight it deems appropriate, thereby giving this issue less weight in post-amendment actions, but (j)(1) creates a presumption of termination upon retirement age, that places the burden of proof upon the party receiving alimony to prove that it should not terminate. This is not part of (j)(3) at all.
The considerations within NJ 2A: 34-23(j)(1) and (j)(3) for determination of whether or not an alimony award will be modified or terminated are not otherwise identical, making this cases very fact specific.
If you need to discuss alimony modification upon retirement, call the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400.
