ALIMONY – Permanent v. Limited Duration (Guidance Please!)

by | Mar 26, 2019 | News

ALIMONY – Permanent v. Limited Duration (Guidance Please!)

By Charles F. Vuotto, Jr., Esq. and Lisa Steirman Harvey, Esq.

It is axiomatic that uncertainty in outcome breeds litigation.  Litigation generates increased fees and emotional stress for the parties and their children.  There is no question that uncertainty as to the duration of alimony causes many cases to be prolonged longer than necessary, triggering many of the negative aspects of divorce to occur.  It is perhaps one of the most frequently asked question by our family law clients: “Is my spouse (or am I) entitled to permanent alimony?” It is usually followed, of course, by the question, “If I am obligated to pay limited duration alimony, how long and how much will I have to pay?”  Or, if you represent the supported spouse, “If I am only entitled to limited duration alimony, how long will it last and how much will I receive?” Unfortunately, these questions, so often raised by our clients, usually create more questions for an advocate than answers.

The authors of this article originally sought to delve into the case law of our state in a sincere effort to define the law surrounding limited duration alimony.  Specifically, the authors sought to delineate those factors (besides the length of a marriage) that a court focuses on when determining between limited duration and permanent alimony and, if limited duration alimony is awarded, those factors that a court considers when determining duration. Unfortunately, instead of providing concrete answers, the authors discovered that the jurisprudence in this area may, in fact, raise more questions.  Indeed, there appears to be no distinct answers contained in any key case law.  However, when viewed as a mosaic, the entirety of the case law does provide some instruction.  There is certainly strong argument favoring the establishment of a more focused set of factors or guidelines to fill in the blanks when it comes to duration of alimony in order to eliminate some degree of uncertainty. However, there is, perhaps, an equally strong counter-argument against the broad application of “cookie-cutter” guidelines to such a subjective (and sensitive) matter as alimony.  The authors of this article hope to provide the reader with an overview of the existing law of limited duration alimony in order to stimulate debate about whether alimony guidelines are the answer to all our unanswered questions, or whether they are a poor substitute for the subjective analysis truly required to determine an alimony obligation.

  1. A. SEMINAL LAW DISTINGUISHING LDA FROM PERMANENT ALIMONY

On September 13, 1999, the legislature amended the alimony statute, N.J.S.A. 2A:34-23, to include limited duration alimony as a cognizable support award available to the courts.  Although the award of limited duration alimony has quickly become commonplace, the vague language of the amendment, coupled with a dearth of published case law, has created great confusion concerning the actual law to be applied when determining whether a dependent spouse is entitled to permanent or limited duration alimony (hereinafter “LDA”)..

Specifically, N.J.S.A. 2A:34-23(c) sets forth:

In any case in which there is a request for an award of permanent alimony, the court shall consider and make specific findings on the evidence about the [factors delineated by N.J.S.A. 2A:34-23(b)].  If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefore. The court shall then consider whether alimony is appropriate for any or all of the following:  (1) limited duration; (2) rehabilitative; (3) reimbursement.  In so doing, the court shall consider and make specific findings on the evidence about factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.

N.J.S.A. 2A:34-23(c).

The seminal case distinguishing permanent and LDA is the Appellate Division decision of Cox v. Cox, 335 N.J. Super. 465 (App. Div. 2000).  As Cox is the only published decision truly detailing the distinguishing characteristics of LDA from permanent alimony, it is necessary to digest the case at length.  In Cox, the plaintiff, former wife, who had been married to defendant for 22 years, appealed the trial court’s award of limited duration alimony on grounds that permanent alimony was the appropriate award.  Id. at 469-70.  The parties married in 1977. There was one child born of the marriage, who was in college.  During the marriage, the defendant worked as a crane operator earning approximately $120,000.00 per year in gross income.  Defendant acknowledged that he worked 80-90 hours per week, but set forth that the mental and physical stress of the job were starting to effect his health.  Plaintiff, who received her law degree in 1998, worked for a year as a law clerk earning $30,000.00. Plaintiff, although unsuccessful in her first attempt to pass the bar examination, did obtain employment at a law firm earning $33,000.00 per year in gross income. Id. at 470-71.

Despite the fact that the Cox trial court found the parties’ marriage to be “long-term”, and further determined there to be a “substantial disparity between the parties’ incomes”, the trial court awarded limited duration alimony for a period of five years in the amount of $200.00 per week.  Id. at 472.  Plaintiff appealed.

On appeal, the Cox Appellate Division explored the parameters of LDA, distinguishing it from permanent, rehabilitative, and reimbursement alimony.  The Cox Appellate Division emphasized that unlike rehabilitative or reimbursement alimony, “Limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate.”  Id. at 476.  The authors question the clarity of this standard.

The Cox Appellate Division then addressed the legislative intent surrounding the creation of LDA, explaining that the amendment was proposed in order to “establish limited duration alimony as a third type of alimony, to be used in all cases involving shorter-term marriages where permanent or rehabilitative alimony would be inappropriate or inapplicable but where, nonetheless, economic assistance for a limited period of time would be just.”  Id. at 477-78 (quoting S. No. 54, 6-7, 208th Leg. (N.J. 1998) (statement of Sens. Kavanaugh & Martin) (emphasis added) (citing Report of Commission to Study the law of Divorce, Recommendation 13 (Apr. 18, 1955) [“Divorce Study Commission Report”] ).  Although this further elaboration is slightly less cloudy, it still does not provide clear direction to the bench and bar as to the purpose of LDA and when it is appropriate.

Based on both the express language of N.J.S.A. 2A:34-23(c) and the legislative history of the same statute, the Cox Appellate Division delineated the procedure to be followed by courts when determining whether LDA should be awarded.  Specifically, the Appellate Division instructed:

On any application for permanent alimony, it is incumbent upon the trial judge to first “consider and make specific findings on the evidence” as to the statutory factors set forth in N.J.S.A. 2A:34-23(b).  If the Judge determines that permanent alimony is not warranted, further specific findings setting forth the judge’s reasons for that determination must be made.  Consideration of any other form of alimony, including limited duration alimony, may follow only after those determinations and findings have been made.

Id. at 478-79 (citations omitted).

One of the basic problems with the above approach is that it is not clear which statutory factors the court must focus on to determine the issue of duration of the alimony.

Guiding trial courts in their alimony determinations, the Cox Appellate Division explained that unlike rehabilitative and reimbursement alimony, “Permanent and limited duration alimony, by contrast, reflect the important policy of recognizing that marriage is an adaptive economic and social partnership, and an award of either validates that principle.”  Id. at 479.  Therefore, this statement does not assist in determining between permanent or LDA.

The Cox Appellate Division then discussed the legislative exclusion of LDA awards in long-term marriages, quoting from the Divorce Study Commission Report, supra:

In particular, it is singularly inappropriate in long marriages.  It is, therefore, the clear and unequivocal view of the Commission that such term alimony should be limited to shorter marriages and not be ordered in long-term marriages.

Id. at 482 (quoting Divorce Study Commission Report, supra, at 47) (emphasis added).

The Cox Appellate Division instructed that when determining whether to award permanent or limited duration alimony, the same exact factors of N.J.S.A. 2A:34-23b must be considered, and, if all other facts are equal, the determining factor must be the duration of the marriage.  Id. at 483.  Specifically, the Appellate Division noted:

Limited duration alimony is to be awarded in recognition of a dependent spouse’s contributions to a relatively short-term marriage that nevertheless demonstrated the attributes of a “marital partnership”…In determining whether to award limited duration alimony, a trial judge must consider the same statutory factors considered in any application for permanent alimony, tempered only by the limited duration of the marriage.  All other statutory factors being in equipoise, the duration of the marriage marks the defining distinction between whether permanent or limited duration alimony is awarded.  Id. at 483

Applying the above principles to the case at hand, the Cox Appellate Division concluded that the trial court erred in awarding LDA, rather than permanent alimony to the wife since the trial court “failed to perform a proper analysis of the statutory factors and to set forth the requisite findings as to why permanent alimony was not warranted.”  Id. at 483.  The Cox Appellate Division further declared that the trial court had applied “considerations more appropriate to rehabilitative alimony than to limited duration alimony[.]”, and had failed to acknowledge that the parties’ “ twenty-two year marriage represented a marital partnership”.  Id. at 483-84.  Reversing and remanding, the Cox Appellate Division declared, “Because this was a twenty-two year marriage, permanent alimony should have been awarded absent a clear statement of reasons to the contrary.”  Id. at 483-84.

Based on the foregoing, the Cox Appellate Division reversed and remanded for further proceedings consistent with its opinion.

Five years after Cox, in the case of Gordon v. Rozenwald, 380 N.J. Super. 55 (App. Div. 2005), the Appellate Division slightly clarified its previous definition of LDA, emphasizing that LDA is available to a dependent spouse who made “contributions to a relatively short-term marriage that …demonstrated the attributes of a ‘marital partnership’, but who has the skills and education necessary to return to the workforce” after the divorce.  Id. at 65-66.  As in Cox, the Rozenwald Appellate Division distinguished LDA from permanent alimony due to the length of the marriage, and further distinguished LDA from rehabilitative alimony because the term of the alimony “is not based upon projections about time needed to acquire education or job skills.”  Id. at 65-66.

  1. B. CONCLUSIONS DRAWN (AND QUESTIONS RAISED) FROM SEMINAL CASE LAW

The decisions of Cox and Rozenwald permit the following conclusions to be drawn with regard to the considerations that a court must examine when determining between an award of permanent or LDA:  (1) LDA is not appropriate in “long term” marriages; (2) Permanent alimony is not appropriate in “short term” marriages; (3) The deciding factor between LDA and permanent alimony is the length of the marriage; (4) LDA and permanent alimony are both based on an analysis of the same statutory factors; (5) LDA and permanent alimony are both based on the concept of marital partnership; (6) LDA and permanent alimony are both based on economic need [including the need to maintain the marital lifestyle in appropriate cases], but an award of LDA recognizes that an award of permanent alimony would not be appropriate given the length of the marriage; and (7) LDA is appropriate in a situation where a dependent spouse contributed to a marital enterprise of relatively short term (or intermediate duration), but also has the skills and education to return to the workforce after the parties’ divorce.

As established above, the language of Cox, as well as the legislative history quoted therein, makes it abundantly evident that LDA is not to be awarded in “long term marriages,” and permanent alimony is not to be ordinarily awarded in “short term” marriages.  Cox, 335 N.J. at 482; Adams v. Adams, 2006 WL 587713, 5 (N.J. Super. A.D.) (“LDA is only available to marriages of short duration where permanent alimony is not appropriate, but where economic assistance is just”).  Therefore, the law is clear that in those marriages easily defined as short term, if any support is awarded, it must be LDA as opposed to permanent.  Likewise, in those cases where the marriage can be easily defined as “long term,” LDA is not to be awarded and permanent alimony must be considered.  Neither the statute nor Cox provide any direction with regard to those marriages that do not fit easily into the categories of “short-term” or “long-term.”  The law is silent with regard to these intermediate length marriages.  Indeed, the law expounded above raises the following critical questions:

(1) Is there a particular bright line distinguishing the length of marriage warranting permanent alimony from the length of marriage warranting LDA?

(2) In those marriages of medium, or intermediate, duration, what factors must a court examine when determining whether LDA or permanent alimony is appropriate?

Both of the above questions, as well as questions surrounding the appropriate length of limited duration alimony, are addressed below.

  1. IS THERE A BRIGHT LINE DISTINGUSIHING THE LENGTH OF MARRIAGE WARRANTING PERMANENT ALIMONY FROM THE LENGTH OF MARRIAGE WARRANTING LDA?

The law is manifest.  “There is no bright line rule that divides the duration of a marriage that warrants an award of permanent alimony from the duration of a marriage that is too brief for an award of permanent alimony.”  Gordon, 380 N.J. Super. at 74, fn. 4.  Why is this?  If it is a key threshold factor, should not the courts provide some guidance?  Although there is no ‘magic number’ separating a short-term marriage from a long-term marriage, the case law of New Jersey does suggest that marriages lasting less than ten years are generally considered shorter-term marriages not warranting permanent alimony.  Bornstein v. Bornstein, 2007 WL 2403534, 5 (N.J. Super. A.D.) (“The parties’ marriage…was short of ten years, diminishing the strength of a possible claim by either spouse for permanent alimony”).

Similarly, the case law indicates that marriages lasting from nine years to as long as 14 years may be considered “intermediate marriages” warranting an award of either LDA or permanent alimony depending on the circumstances.  Hughes v. Hughes, 311 N.J. Super. 15, 33-34 (App. Div. 1998) (although decided prior to the enactment of LDA, instructive in so far as it determines a marriage of ten years to be of “medium” length warranting an award of permanent alimony under certain circumstances); Finne v. Finne, 2008 WL 2078504, 5-6 (N.J. Super. A.D.) (marriage of approximately ten years was of “intermediate length” and LDA, not permanent, was the more appropriate support award); Valente v. Valente, 2009 WL 169294, 3  (N.J. Super. A.D) (reversing trial court’s decision to award permanent alimony and noting that marriage of 11.9 years was of “intermediate length”); Weaver v. Weaver, 2005 WL 1562798, 16 (N.J. Super. A.D) (reversing and remanding trial court’s decision to award permanent alimony in a 14 year marriage [although parties separated after 12.5 years], and noting that the marriage was of “limited duration”); Pollack v. Pollack, 2005 WL 2649331, 2 (N.J. Super. A.D.) (noting that a marriage of almost 13 years was not a “short-term” marriage, and affirming the trial court’s award of permanent alimony); Schwartz v. Schwartz, 2005 WL 2861023, 4 (N.J. Super A.D.) (reversing the trial court’s award of permanent alimony in a nine year marriage, and further declaring, “The difficult decisions [regarding whether to award LDA or permanent alimony] arise in the context of “intermediate length” marriages, such as the ten-year marriage in Hughes, and the nine-year marriage in the instant case.”); Newell v. Hudson, 376 N.J. Super. 29, 46 (App. Div. 2005) (In a nine year marriage with no children, LDA of four years is “presumptively fair”).

  1. IN MARRIAGES OF INTERMEDIATE DURATION, WHAT FACTORS DO COURTS CONSIDER WHEN DETERMINING BETWEEN AN AWARD OF PERMANENT ALIMONY OR LDA? 

Although Cox is clear that all of the factors outlined in N.J.S.A. 2A:34-23 should be considered when determining between permanent alimony and LDA, the case law of New Jersey indicates that the courts give greater deference to the following factors discussed below, namely: (1) Economic need/earning capacity (including impact of children and childcare responsibilities); (2) Contributions/sacrifices made by the supported spouse [or lack thereof] during the marriage and whether the supported spouse was financially prejudiced as a result thereof; (3) Existence of a marital partnership; and, (4) Marital standard of living.

Below is a summary of cases demonstrating the court’s focus on each of the above referenced factors when determining whether to award permanent alimony or LDA.

(D)(a) Economic Need/Earning Capacity (including age of dependents and impact of children)

Valente v. Valente, 2009 WL 169294 (N.J. Super. A.D.).  The Appellate Division reversed the trial court’s decision awarding permanent alimony in a marriage of 11 years and 9 months.  When determining that permanent alimony was not appropriate in the “intermediate length” marriage, the Appellate Division focused on the young age of the wife (40), the fact that the wife had a college degree and worked prior to the marriage earning $24,000 per year (although she did not work during the marriage), the fact that the parties children were now old enough to be in school full time, and the fact that the wife was in good health and “perfectly capable of supporting herself and the family unit.” Id. at 3.  The court placed little, if any, weight on the fact that the parties enjoyed a very high marital lifestyle supported by the fact that the husband was a successful businessman who earned an average of $323,000 over the three years prior to the Complaint for divorce. Id.

Schwartz v. Schwartz, 2005 WL 2861023 (N.J. Super. A.D.).  In a nine-year marriage where the husband earned approximately $100,000-$150,000 and the wife did not work, the Appellate Division reversed the trial court’s award of permanent alimony.  The Schwartz Appellate Division focused on the following facts: the wife had a college degree, was employed for six years during the beginning of the marriage earning $22,000.00, was young, and was fully capable of returning to the work force to regain her earning potential.

Pollack v. Pollack, 2005 WL 2649331 (N.J Super. A.D.).  The Appellate Division affirmed the trial court’s award of permanent alimony, focusing on fact that the wife had not worked outside of the home during the parties’ marriage of over 12 years).

Doctoroff v. Doctoroff, 2007 WL 2728415, 1 (N.J. Super. A.D.). Although not referencing the length of marriage, providing for LDA of 12 months in order to allow wife to complete her residency and provide “an appropriate period of transition into her new employment” as a family practitioner.

KhatKhat v. Hussein, 2008 WL 1744485, 1 (N.J. Super. A.D.).  In a marriage of approximately five years, wife was entitled to LDA.  The wife had a minimal earning capacity of $202 per week, whereas the husband earned $56,725 per year.  In addition to the  discrepancy in income/education between the parties, the wife had limited English skills and needed to obtain a high school equivalency degree in order to support the young children of the family.

Finne v. Finne, 2008 WL 2078504, 5-6 (N.J. Super. A.D.) An award of LDA for 9 years was affirmed on appeal.  The parties were married for 10 years.  The husband earned between $70,000 and $78,000 during the last three years of the marriage.  The wife worked as a bartender before and during the marriage earning between $7,000 and $10,000 per year.  The parties had no children. The Appellate Division noted that the trial court focused on the fact that the wife did not forego all of her earning potential during the marriage.  Since the wife continued in her employment as a bartender during the marriage (although on a reduced basis),  and she was able to support herself prior to the marriage, the LDA would allow a sufficient transfer of earning power to the wife.

MacFarland v. MacFarland, 2008 WL 2415260 (N.J. Super. A.D.)  Appellate Division affirmed the trial court’s award of permanent alimony in a marriage of approximately 30 years, focusing on the discrepancy in income between the parties and the wife’s need for support from her husband to pay her bills.

Pack-Eisenberg v. Gechtman, 2006 WL 1749627 (N.J. Super. A.D.)  The Appellate Division noted, in dicta, that the trial court denied alimony despite the length of the parties’ 37-year marriage because the wife earned more than the husband during the marriage.

Booth v. Booth, 2006 WL 2056862 (N.J. Super A.D.)  The Appellate Division affirmed a four-year term LDA award on a three-year marriage based upon the financial need of the wife, whose salary, as a schoolteacher, did not cover the monthly living expenses of her and the minor child.

Palmiere v. Cortes-Palmiere, 2006 WL 2096066, 4-5 (N.J. Super. A.D.).  The Appellate Division affirmed the trial court’s denial of LDA in a six-year marriage, but premised such affirmation on the fact that the trial court appropriately determined that alimony was not warranted due to the assets the wife would be receiving in equitable distribution.

Kotbi v. Kotbi, 2008 WL 3914870, 6 (N.J. Super. App. Div.) The Appellate Division reversed the trial court’s denial of alimony in a nine-year marriage on grounds that the trial court failed to examine whether the wife had a financial need for LDA.

Fuzer v. Fuzer, 2008 WL 2120860, 4 (N.J. Super. A.D.)  The Appellate Division affirmed an award of LDA for a term of four years on a marriage of ten years where the parties had no children, the husband was imputed $100,000 to $120,000 of income, and the wife was imputed $30,000 of income.  The Appellate Division explained that the award of limited duration was appropriate due to the discrepancy of income and earning potential between the parties, as well as the marital standard of living.

Whitesell v. Whitesell, 2006 WL 1302407, 4 (N.J. Super. A.D.)  The Appellate Division affirmed an LDA award of one year in a 2.5 year marriage since such “financial relief” was necessary due to the special needs of the parities’ minor child, and in order “to permit the child to gain in age and the wife to re-enter the employment market…”)

D(b) Contributions/Sacrifices Made by Supported Spouse [or lack thereof] during the Marriage and Whether the Supported Spouse Was Financially Prejudiced as a Result Thereof

Weaver v. Weaver, 2005 WL 1562798 (N.J. Super. A.D.).  The Appellate Division reversed the trial court’s award of permanent alimony in a 14-year marriage (although the parties were separated after 12.5 years).  When determining that LDA, not permanent alimony, was appropriate, the Appellate Division focused on the fact that the wife did not contribute to the marriage by way of being a homemaker and childcare provider, nor did she forego any earning potential during the marriage.  Specifically, the Weaver Appellate Division opined:

Although an award of permanent alimony, as opposed to limited duration alimony, may be ultimately warranted, the record on appeal does not support the traditional rationale for an award of permanent alimony, as outlined in Cox, supra, 335 N.J.Super. at 482-83.Specifically, it does not appear that an award of permanent alimony was ordered by the trial court to compensate defendant for the value of benefits she conferred upon plaintiff by being responsible for homemaking and child rearing, with the primary benefit to plaintiff being an increase in his earning capacity. Here, the record reflects that both parties actively pursued their chosen careers, seemingly largely unaffected by their roles in the marriage. For the same reasons, the findings of the trial court do not support a conclusion that the permanent alimony award was to compensate defendant for the opportunity costs of homemaking causing lost earnings through the years due to her assuming the major responsibility for the home. We also discern no “transfer of earning power” to have occurred during the parties’ marriage that would have been characterized by defendant’s efforts to increase the earning capacity of plaintiff at the expense of her own. Rather, as noted, it appears that both parties advanced their education and careers, worked throughout the marriage, and both significantly increased their earning capacities during that time. Of course, without further findings, we can reach no definitive conclusions on the alimony issue. A remand is necessary for the court to address and assess these relevant considerations.

Weaver, 2005WL 1562798, at 17.

Robertson v. Robertson, 381 N.J. Super. 199 (App. Div. 2005).  The trial court’s award of permanent alimony to the wife in a 12-year marriage was affirmed, since the wife had sacrificed her earning potential to be the primary caretaker of the three minor children.  The husband was thus able to excel in his career (earning in excess of $200,000).It was improbable that wife could maintain the marital standard of living on her earning potential alone, although it was likely that permanent alimony would be decreased once the youngest child reached age 16.

Naik v. Naik, 399 N.J. Super. 390, 392 (App. Div. 2008).  Apart from support mandated by an Immigration Affidavit of Support (Form I-864EZ), wife in a less than three-year marriage was not entitled to LDA since the parties were young, no children were born of the marriage, the parties were in good health, the wife was well educated, and the marriage did not absent the wife from the job market.

D(c)  Marital Partnership

Anunobi v. Anunobi, 2008 WL 2677993 (N.J. Super. A.D.).  In a four-year marriage where wife left the husband with the parties’ children after two years in order to obtain a law degree, wife was not entitled to LDA since there was no semblance of a marital partnership.

Ferrier v. Anastos Ferrier, 2005 WL 3617896, 15-18 (N.J. Super. A.D.) LDA was not warranted in a five-year marriage since the wife had not been financially prejudiced during the parties’ “short-term marriage”.  The trial court concluded that since permanent alimony would not be awarded under these circumstances, LDA could not be awarded since a party “must qualify for permanent alimony but for the limited duration of the marriage” before an award of LDA may be considered.  Affirming the decision of the trial court, the Appellate Division stressed that the wife’s earning potential had not been adversely impacted by the marriage, and the parties, who lived in separate states and pursued separate pursuits throughout the marriage, never had a “marital partnership” that would support an award of alimony.

D(d) Marital Standard of Living

Tarantino v. Tarantino, 2006 WL 572197, 3-4 (N.J. Super. A.D.)  In a five-year marriage, the Appellate Division affirmed an award of LDA for a period of five years.  The wife, who did not require further education to obtain a substantial earning capacity as a lawyer, required financial support to maintain the extremely high standard of living established during the marriage.  The husband’s earnings averaged approximately $743,000 during the last three years of the parties’ marriage.  The Appellate Division also noted that the award of LDA recognized the non-economic contributions made by the wife during the marriage, which included her decision to seek a less demanding job in a small firm so that she could maintain the household and entertain the husband’s clients so that the husband could increase his earning potential.

Weimer v. Weimer, 2005 WL 3148504, 4 (N.J. Super. A.D.).  The Appellate Division reversed the trial court’s award of LDA for a period of eight years on a marriage of approximately 10 years due to the trial court’s failure to take into consideration the marital standard of living in a situation where the wife did not work outside of the home during the marriage.  The wife’s highest income before the marriage was $23,000, while the husband had earned between $263,000 and $407,794 during the last three years of the marriage (although he was voluntarily unemployed at the time of the divorce).

Wardencki v. Wardencki, 2001 WL 1827519, 2 (N.J. Super. A.D.) Affirming an award of permanent alimony in a marriage of approximately 10 years and noting that the trial court focused heavily on the marital standard of living and, in particular, the fact that “had the parties not divorced, they would be enjoying a new home and vacationing on their boat.”  The court also focused on the fact that during the marriage, the wife supported the husband financially while he reduced his employment to part-time so he could further his education.

Cetin v. Cetin, 2006 WL 20560, 6 (N.J. Super. A.D.).  The Appellate Division concluded that the trial court’s award of 2.5 years of reimbursement alimony on a 6.5 year marriage, which was based upon the fact that the wife forewent her own employment to work in the husband’s store, should have correctly been characterized as LDA)

E.I. v. L.I., 2006 WL 1764473, 8 (N.J. Super. A.D.).  In a marriage of approximately 10 years, the Appellate Division affirmed an LDA award of three years in a situation where the wife earned 25,000, the husband earned $87,000, and the husband had custody of the children.  The court concluded that the receipt of LDA would enable the wife to “live the same modest lifestyle the parties had acquired while living together.”

De Saro v. De Saro, 2005 WL 3879582, 5 (N.J. Super. A.D.)  The Appellate Division reversed the trial court’s decision to award LDA of one year on a marriage lasting only one year since the trial court failed to consider that the wife’s receipt of substantial equitable distribution, coupled with her own earning capacity, and the bad faith she demonstrated during the proceedings, which precluded an award of LDA.

Dubois v. Brodeur, 2007 WL 2012387 (N.J. Super. A.D.).  The Appellate Division reversed the trial court’s award of permanent alimony to the wife on a 7.5-year marriage.  Husband was a professional hockey player, who earned millions of dollars during the marriage.  The Appellate Division noted that the 7.5-year marriage was of neither short or long duration, but was “decidedly closer’ to a being considered one of short duration.  Id. at 19.  The Appellate Division noted that even though the wife would never be able to maintain the standard of living established during the marriage without the support of the husband, such a finding in an intermediate length marriage did not require an award of permanent alimony.  Id. at 20.  The Appellate Division then opined that based on the length of the relationship, the young age of the wife, the age of the minor children, and the wife’s responsibilities as caretaker for the children, the wife was entitled to LDA, rather than permanent alimony.

Morse v. Morse, 2007 WL 3101687 (N.J. Super. A.D.).  The Appellate Division reversed the trial court’s denial of alimony in a 25-year marriage based on the trial court’s error in determining that the wife did not need support in order to maintain the marital standard of living.

Ceca v. Ceca, 2007 WL 1745306, 4 (App. Div. 2007).  The Appellate Division reversed the trial court’s award of LDA for a term of ten years on a marriage of approximately six years based on the court’s determination that the trial court failed to make any determinations concerning marital lifestyle and the wife’s current need related to the marital lifestyle.

  1. WHAT GUIDANCE DOES THE STATUTE PROVIDE WITH REGARD TO THE APPROPRIATE LENGTH OF LDA? 

The legislature provided only vague directive with regard to a court’s determination of the length of an award of LDA.  Specifically, N.J.S.A. 2A:34-23(c) provides:

In determining the length of the term, the court shall consider the length of time it would reasonably take for the recipient to improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.

Although the statue indicates that the term of LDA should coincide with the amount of time necessary for the supported spouse to improve his or her earning potential “to a level where limited duration alimony is no longer appropriate”, the statute provides no guidance as to what constitutes a situation where LDA is “no longer appropriate.”  Unfortunately, as detailed below, the case law of New Jersey is also silent with regard to what degree of earning capacity  is sufficient to reach a “level where limited duration alimony is no longer appropriate.”  N.J.S.A. 2A:34-23(c); see also Patel v. Katariya, 2008 WL 5194453 (N.J. Super. A.D).  Further, the authors point out that this “standard” flies in the face of the language in Cox, which appears to hold to the contrary.  The Cox Appellate Division emphasized that unlike rehabilitative or reimbursement alimony, “Limited duration alimony is not intended to facilitate the earning capacity of a dependent spouse or to make a sacrificing spouse whole, but rather to address those circumstances where an economic need for alimony is established, but the marriage was of short-term duration such that permanent alimony is not appropriate.”  Id. at 476.  Therefore, it appears that a contradiction exists in the law, which requires either correction or clarification.

  1. F. WHAT FACTORS DO THE COURTS EXAMINE WHEN DETERMINING THE APPROPRIATE DURATION OF LDA?

In the seminal case of Gordon v. Rozenwald, 380 N.J. Super. 55, 68 (App. Div. 2005), the Appellate Division explained that the duration of an LDA award must be based on “historical” factors existing during the marriage, and must not be based on speculations about future circumstances.  Specifically, the Gordon court declared:

The length of a term of limited duration alimony is based primarily upon the historical facts of the marital enterprise, not predictions about future events…

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The premise for a term of limited duration alimony under N.J.S.A. 2A:34-23c is primarily historical not predictive and it is not based upon estimates about financial circumstances at the time of termination.  Thus, the end date of a term of limited duration alimony is the equivalent of an arrangement to terminate support at a predetermined time or event, regardless of need.

Gordon, 380 N.J. Super. at 67-68.

Although the authors may agree with this stated purpose, more direction is needed.  Further, the language of Gordon quoted above appears to contradict the statutory mandate that requires a court when determining the term of LDA to consider the supported spouse’s future ability to “improve his or her earning capacity to a level where limited duration alimony is no longer appropriate.”  N.J.S.A. 2A:34-23(c).  In other words, how can a court determine how long it will take a spouse to “improve his or her earning potential to a level where limited duration alimony is no longer appropriate” without taking into consideration “estimates about financial circumstances at the time of termination?”  Gordon, 380 N.J. Super. at  68; see also Rothfeld v. Rothfeld, 2008 WL 4763271 (N.J. Super. A.D.)  (hinting upon the inherent inconsistency between the prohibition on predictive factors established in Gordon and the express language of N.J.S.A. 2A:34-23(c) that requires the court to predict the amount of time it would take for the supporting spouse to reach a level where limited duration alimony is no longer appropriate).

Perhaps due to the inconsistency between the statute’s directive requiring predictions as to future earning capacity and the language of Gordon prohibiting predictions about future events when determining the term of LDA, the courts of New Jersey consistently rely upon predictions when determining the length of an award of LDA.  See Doctoroff v. Doctoroff, 2007 WL 2728415, 1 (N.J. Super. A.D.) (awarding LDA for one year based on the amount of time needed for the wife to obtain her residency and transition herself into her new employment); Finne v. Finne, 2008 WL 2078504, 6 (N.J. Super. A.D. 2008) (affirming the trial court’s award of LDA and noting that the trial court based its determination as to length of the LDA award, in part, on estimates about future financial circumstances of the parties).

Notwithstanding the directive of N.J.S.A. 2A:34-23(c) and the law of Gordon, the courts frequently default to the ages of the children when determining the length of LDA.  Indeed, the ages of the parties’ children weighs more heavily in a court’s determination as to the length of LDA than it does in the court’s determination of whether permanent or LDA should be awarded.  Schwartz v. Schwartz, 2007 WL 1756778, 1 (N.J. Super. A.D.) (“The duration of the term alimony, though lengthy, was linked rationally to the youngest child’s graduation and driven by the plaintiff being a full-time homemaker and child care provider.”); Weaver v. Weaver, 2005 WL 1562798, 17 (N.J. Super. A.D.) (noting that the duration of an award of LDA may be fixed upon “the period of time that [wife] and the children will be residing in the marital domicile, or with the minority of the children”); Whitesell v. Whitesell, 2006 WL 1302407, 4 (N.J. Super. A.D.) (affirming an LDA award of one year in a 2.5-year marriage since such “financial relief” was necessary due to the special needs of the parities’ minor child, and in order “to permit the child to gain in age and the wife to re-enter the employment market…”).

As a final point, it must be noted that although the law is clear that an award of LDA should be of an amount to help the supported spouse maintain the standard of living, the law is also clear that a spouse’s absolute inability to ever maintain the standard of living does not warrant permanent alimony.  Dubois v. Brodeur, 2007 WL 2012387 (N.J. Super. A.D.) (Reversing the trial court’s award of permanent alimony to the wife on a 7.5-year marriage, and noting that although the wife would never be able to maintain the standard of living established during the marriage without the support of the husband, such a finding in a short term marriage did not require an award of permanent alimony).  Consequently, the following question is raised:  In situations where a spouse will never be able to reach an earning potential that will enable her to achieve the marital standard on her own, when is her receipt of LDA “no longer appropriate” pursuant to N.J.S.A. 2A:34-23(c)?

CLOSING REMARKS
The authors suggest that when it comes to the amount of permanent or LDA and to a lesser degree the duration of LDA (once determined appropriate), a full consideration of all statutory factors is certainly required.  However, when determining the threshold question of “permanent” vs. “LDA,” the length of the marriage is a factor that has been elevated above all others.  Therefore, the authors suggest that the rule of law established by Cox requires a clear definition by the legislature or the courts of the following terms:

  • “short-term marriage”
  • “intermediate-length marriage”
  • “long-term marriage”

The number of years associated with each of the foregoing terms should be a clear and unequivocal number, no matter what other considerations are in play.  The authors do no suggest that the length of the marriage should be the only consideration, but it certainly should be the predominant one.  However, since it has been made, according to the Cox decision, a threshold factor, the bench and bar must be told the exact number of years places the marriage into one of these categories.  The determination of this threshold issue cannot be left to guesswork.  Guesswork hurts families by causing uncertainty in outcome.  Therefore, the authors suggest that the number of years to be associated with the following terms should be:

  • “short-term marriage” (1 to 9 years)
  • “intermediate-length marriage” (10 to 15 years)
  • “long-term marriage” (16 and over)

The number of years associated with each of the foregoing terms are consistent with the case law and current societal norms.

The authors are hopeful that this article has not only broadened the reader’s mind on the current status of the law concerning limited duration alimony, but has further sparked debate as to whether more precise definitions or guidelines as to the length of a marriage are in order.