Alimony and Spousal Support
Alimony and Spousal Support

What is alimony?  

Alimony is the label that is used to describe payments that are made by one spouse to the other after a divorce. In New Jersey, it's usually called spousal support.  Alimony is forward-looking (past the time of divorce), and it is used to try to balance out differences in one ex-spouse's ability to earn money to support him/herself. 

No matter what it feels like, alimony is not a punishment.  Instead, at least in theory, alimony is designed to preserve a standard of living similar to that held during the marriage. Alimony payments are usually taxable as income to the spouse who gets paid alimony, and treated as a tax deductible expense to the spouse that pays it out.

Is alimony the same as equitable distribution?  

No.  The concept of alimony is very different from the concept of equitable distribution. Equitable distribution looks to the past history of the marriage - what property did the parties acquire together during the marriage - also called, the "marital pot."  Equitable distribution involves splitting up the marital pot between the spouses.  In this context, equitable means "fair" - it does not mean "equal."  What is fair?  Well, that's what parties fight about.  The parties to a marriage are not taxed on the equitable distribution of marital property because it is not treated as a transfer to another or gain of wealth - it's just a splitting up of what is already owned by both parties.

Are there different kinds of alimony?

Yes. New Jersey has four different kinds of alimony- limited duration, rehabilitative, reimbursement, and permanent. The first three are meant to be temporary.  A judge can award one or all four of these types of alimony to an ex-spouse.  This is separate from child support.

What is limited duration alimony?

Limited duration (or term) alimony is the most common form of temporary alimony that is awarded, and it does what it sounds like. It is meant to allow a spouse to have time to get back on their feet and support themselves, but then it expires. The time period can be extended if there is a change in circumstances.

What is pendente lite alimony?

Pendente lite is Latin legalese and means "while the litigation is pending and has not been completed" and is a form of temporary alimony ordered while the case is ongoing and before the final judgment of divorce is entered, so that the lifestyle of the family remains close to what it was during the marriage, while matrimonial issues are being argued before the judge.  Since one spouse does not want to support the other during a divorce, the court awards it to make sure that the other spouse's bills will still be paid.  This is separate from child support.

What is permanent alimony?

If there is a long-term marriage where one spouse depended on the income of the other it is probable the judge will issue a support order that is meant to be permanent.  Usually, the receiving spouse is older, raised the children and has no real ability to find meaningful employment.  Again, the goal is to maintain a similar lifestyle to when they were married. Although called permanent, it can be modified up or down based on a severe change of circumstances by either spouse. However, reducing permanent alimony is very difficult to achieve, and any changes downward are usually on a temporary basis.

What is rehabilitative alimony?

It's a form of limited duration alimony designed to support an ex-spouse while he/she acquires retraining or new skills to get a job and stand on her own feet. 

What is reimbursement alimony?

This is the one spouses always argue about.  It treats the economic "sacrifices" one spouse made during the marriage as a debt to be repaid.  The theory is that one spouse's labor or sacrifices were necessary to the other spouse's ability to earn money, so should be treated as a partner in the enhanced capacity.  The typical case is one spouse working to support the entire family while the other one is in medical or law school.  .Then, sometimes the new doctor/lawyer meets someone in school and decides to upgrade the spouse.  It's an "I helped you get the degree, so I deserve a part of the increased value you'll get from the degree for the rest of your life" argument.  Experts usually come in and determine the value of making the bed, feeding and caring for the kids, as if they were an employee and not a wife.  The spouse getting reimbursement alimony gets back their financial contributions towards the former spouse's education, and household expenses.

Can the court order a dependent ex-spouse to get a job?

The court can decide what the "imputed" estimated value of a dependent spouse should be if he/she were working and compensate for that in awarding alimony.   The court can bring in an employment expert to figure that out.  If it is determined that an ex-spouse is capable of working and is just lazy, the court can reduce the support obligation.  .

What happens to alimony if a divorced spouse remarries?

Rehabilitative and reimbursement alimony do not terminate if the spouse receiving the support gets remarried.

If the parties agree to alimony in a written contract, and agree to not ask to ever have it modified, can a court still modify it later on?

No and yes.  Such an agreement is part of a property settlement agreement. An agreement to not modify alimony is legal (an "Anti-Lepis" clause) and usually will be upheld by the courts; however, if there is evidence of fraud or unfair bargaining in negotiating this agreement, the court can overturn it based on the judge's equitable powers. 

Can a person limit how much alimony they pay to the other spouse in the event of divorce with a prenup agreement?

A prenup (also called antenuptial or premarital agreement) can limit alimony and other financial exposure if the agreement was fair and both parties provided full disclosure of their respective finances.  If the court finds there was "fraud, duress, or overreaching" in setting up the agreement, then the court will not enforce the prenup.  In some prenups, the parties may try to limit alimony to each other in the future. If, later on, the prenup becomes a contested matter, then the court will examine if refusing to grant alimony to a spouse who needs it is really equitable. Each case is different and the court's standard for deciding is "a totality of the circumstances" of that individual case.

Can a person get a divorce first without alimony and then ask for alimony later on?

It can happen.   Sometimes, both spouses have jobs and are doing well, so alimony is not necessary or is not rewarded by the court, but later on, something unexpected happens and one spouse gets into serious and unexpected financial trouble due to a car accident or a serious disease.  The troubled spouse can go back into court and revisit the issue of alimony.  The court can have a hearing on the issue (a Lepis hearing). 

Can a spouse who is paying alimony file a motion to modify and lower it?

If the spouse paying alimony has a sudden decrease in income, then he should immediately file a motion to ask the court to decrease or terminate his alimony obligation.  The court will examine the circumstances to make sure the income drop is real and not a scheme to get the alimony lowered.  If a spouse deliberately reduces his own income or deliberately loses his job, then the court may refuse to lower the payment  - it's called "imputed" income.

Can a spouse receiving alimony file a motion to increase payments?

Yes, they can and often do, but alimony is based on both need and ability to pay.      If the spouse getting alimony needs more money to maintain her lifestyle, she can go to court to ask for it, but she has to show enough of a change in circumstances to justify the change. 

If a spouse files bankruptcy, does that get rid of his/her alimony obligations?

No.  If someone tries it, call me.  I'm also a good bankruptcy attorney.    If the payor spouse files for personal bankruptcy under Chapter 7 of the United States Bankruptcy Code, then any alimony, maintenance, or support obligations that are paid to a former spouse under a separation agreement or a divorce decree are not dischargeable. In short, a husband can't wipe out or reduce an alimony obligation in a bankruptcy case.

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