If you are thinking about getting a divorce one issue you should consider is alimony, whether you think you may be paying or receiving it. Alimony or spousal support is payments for the support and maintenance of a spouse, during a divorce and/or afterward, either by lump sum or on a continuing basis.

How long alimony continues is determined by state law, which was changed in 2014. Generally, the law is meant to shorten how long alimony lasts, though each case is decided on its own facts. The new version of the statute, N.J.S.2A:34-23, made some important changes to the state’s alimony laws. It doesn’t spell out guidelines as to who should receive it, but it states limitations on how long alimony can go on and sets out guidance on when it may be modified, suspended or ended.

• If a marriage or civil union lasted less than twenty years, alimony can’t exceed the length of the marriage or civil union. An exception can be made when “exceptional circumstances” can be shown. This includes an ex-spouse’s chronic illness or the fact the ex-spouse is caring for a disabled child into the child’s adulthood.
• There is no longer “permanent” alimony and the term was changed in the statute to “open durational” alimony. This change was to reflect that though there is no set end date to alimony and it’s not necessarily permanent.
• The law presumes that alimony will end no later than when the paying spouse reaches “full retirement age” (currently 67 years old if he or she was born in 1960 or after). This presumption is rebuttable so the ex-spouse receiving alimony may get alimony beyond that age if he or she shows good cause for the paying ex to continue paying. The law includes a framework for deciding if alimony can be modified or ended before the paying spouse reaches full retirement age.
• If a paying ex-spouse wants to lower or end their alimony obligations because of a lost job or a cut in income, the paying ex must wait at least 90 days from the date of unemployment or decrease in income to file an application with the court. If the application is successful, a judge can lessen or terminate alimony retroactive to the date of unemployment or reduction in income.

The statute has specific language concerning the suspension or termination (but not modification) of alimony because of the receiving ex-spouse’s cohabitation with another person. Many ex-spouses who get involved in a new relationship often maintain their own residences apart from their new significant others to try to prevent a finding of cohabitation. That strategy may no longer be successful as the law states that, “A court may not find an absence of cohabitation solely on the grounds that the couple does not live together on a full-time basis.”  N.J.S.A. 2A:34-23(n).

The statute defines cohabitation as a relationship:

• Involving a mutually supportive, intimate personal relationship
• Where a couple undertakes duties and privileges that are commonly associated with marriage or civil union, but the couple doesn’t necessarily maintain a single common household.

A court will need to look at a number of issues to decide if cohabitation is occurring to justify a suspension or termination of alimony.

• Intertwined finances, including joint bank accounts and other joint financial holdings or liabilities
• Sharing responsibility for living expenses
• Recognition of the relationship among the couple’s social and family circle
• Whether the two are living together, how often the couple is together, how long the relationship has lasted and other signs of a mutually supportive, intimate personal relationship
• Shared household chores
• If the ex-spouse getting alimony has received an enforceable promise of support from the other person
• Other relevant evidence

The overall tone of the amendments is to favor parties alimony paying and the fact cohabitation can be found short of a couple living together full time should make it easier to suspend or terminate alimony payments. However since this is a relatively new statute without any major court decisions interpreting this section of the law parties involved in litigating this issue will be exploring new legal territory.

Parties will need to be very fact specific no matter which side they’re on. There needs to be details on what the two do together, how often they see each other and what financial arrangements (if any) the two have made. Depending on how high the financial stakes, a paying ex-spouse may want to hire a private investigator to unearth as many facts as possible to support his or her argument.

The spouse receiving alimony, finding intimate details of his or her life may be fair game for discovery and discussion in open court may find working out an agreement with the ex-spouse may be a better option than litigation, perhaps lowering payments for a set period of time.

Depending on your situation the new, 2014 language may or may not apply to you. It can’t be applied retroactively to court orders created prior to its enactment. When it comes to alimony, the amended law applies to divorces that were in process (but not finalized), divorces finalized after the changes were signed into law and applications to modify alimony based on changed circumstances and retirement.

If you have any questions about alimony, whether you’re planning to get divorced or that divorce has already happened, contact our office so we can talk about your situation, how the law may apply and what you can do to protect your rights and interests.