In September 2014, Governor Christie signed into law sweeping changes affecting New Jersey’s alimony statute. While plenty of press and attention was paid to the adoption of “open durational alimony,” many other provisions of the statute were changed, and new provisions were added.
One such area not previously addressed by the statute, and added in to the amended statute, was the effect of retirement on the continuation of alimony, and the statute’s provisions on this subject were recently examined by the Appellate Division.
On February 22, the Appellate Division released a published decision in Landers v. Landers, 2016 N.J.Super. LEXIS 25 (App. Div. 2016).
The parties in Landers were divorced in 1991 after a twenty two year marriage; Mr. Landers was ordered to pay permanent alimony to Ms. Landers. Landers, supra, 2016 N.J.Super. LEXIS at *1-2. Mr. Landers subsequently filed a motion to terminate his alimony obligation following his 66th birthday. He argued he was living off of his Social Security Retirement benefits and his share of his pension benefits. Id. at *2-3. Ms. Landers opposed the termination, citing her limited income and declining health. Id. at *4. The Trial Court found that not only did the new statute apply, but that specifically, section N.J.S.A. 2A:34-23 (j)(1) applied, placing the burden on Ms. Landers to prove alimony had to continue. Finding that Ms. Landers failed to meet her burden, the Court terminated Mr. Landers’ alimony obligation.
The Appellate Division disagreed, finding that of the three different ways the new alimony statute provides for the review of retirement applications, the Trial Court picked the wrong one. Id. at *14-15. First, the new statute provides a rebuttable presumption favoring the termination of alimony at full retirement age (defined by the Social Security Administration); next, if the party paying support has not yet reached full retirement age, they must prove by a preponderance of the evidence their retirement is reasonable and in good faith; lastly, “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 burden of proof is on the obligor to prove “by a preponderance of the evidence” that their obligation should be terminated. Id. at *8-11.
The Appellate Division found that the wording of the latter option – (j)(3) – along with Legislative History of the amendments (which indicated specifically that the amendments were not intended to be construed as affecting any Orders or Agreements in existence prior to the amendment’s effective date) required that (j)(3) be applied by the Trial Court rather than (j)(1). Id. at *13-15. Applying the wrong standard put the burden of proof on Ms. Landers – the party receiving alimony – to prove why she was still entitled to same, whereas under (j)(3), the burden would have been on Mr. Landers. Ibid.
Motions to terminate alimony as a result of one’s prospective or actual retirement can generally be a tricky endeavor, and now with the amendments to the statute and our ever evolving case law, the task is even thornier. Working with an experienced matrimonial attorney to help you navigate these waters will help you avoid a decision based on the wrong section of the law, which can be a time consuming, costly, and preventable mistake. If you have questions about how retirement may affect your alimony, or how any of the other changes to the alimony statute may impact your case, contact Jacobs Berger, LLC, for a consultation today.
