Alimony has always been one the most controversial aspects of any divorce case. This reality caused changes to New Jersey’s alimony laws in 2014. Amongst the changes that both divorce lawyers and judges alike have been following concerns how New Jersey’s alimony laws effect retirement. The following recently released case from the New Jersey Appellate Division addresses issues. Simply put, the person receiving alimony must show in court must “rebut the presumption” as to why alimony should not be terminated upon that payor’s reaching full retirement age under the Federal Social Security Act. This was a massive change in New Jersey’s old alimony laws.
In Landers v. Landers, the New Jersey Appellate Division explained the proper application of the new amendments to the alimony statute, New Jersey Statute 2A:34-23(j). They focused their review on the modification of alimony when the supporting spouse retires.
Nancy E. Landers appealed from a Family Part order dated March 27, 2015, which terminated her ex-husband, Patrick J. Lander’s alimony obligation because he had retired. On appeal, Nancy argued that the motion judge mistakenly applied N.J.S.A 2A:34-23(j)(1). This provision of the statute is limited to alimony awards issued after the effective date of the amended law. Instead, she argued that the motion judge should have applied subsection (j)(3), which applies to reviews of final alimony awards issued before the effective date of the statutory amendments. The New Jersey Appellate Division agreed with Nancy, and held that the order of the Family Part must be dismissed, and ordered a retrial for further review.
Nancy and Patrick’s marriage ended after twenty-two years, by a final judgment of divorce entered on June 24, 1991. According to the final judgment of divorce, Patrick was required to pay Nancy a declining amount of unallocated support for her and the unemancipated children. As of December 1, 2001, this amount of spousal support was $1000 per month. Patrick paid his obligation as ordered and never accumulated any arrears. After his sixty-sixth birthday, he filed a motion to terminate his alimony obligation, which he had paid for twenty-four years. He explained that he was living off of social security retirement benefits and the pension he received as part of the equitable distribution of the marital assets at the time of the divorce. He further alleged that Nancy was still employed, and was also collecting social security retirement as his former spouse. Patrick also explained that his medical conditions forced him to retire. He had a number of surgeries and procedures to preserve his ability to walk after suffering a foot and leg injury. He was also a cancer survivor and took medication for chronic conditions.
Nancy responded with a cross-motion. She wanted alimony payments to continue, and the maintenance of a life insurance policy, insuring Patrick’s life for her benefit. She listed her own medical conditions and ongoing surgery needs. Her monthly income was made up of her share of Patrick’s social security retirement benefits, as his former spouse, and a social security disability award. She stressed that she still needed alimony and further argued that the award was not modifiable. She cited the legislative statement that accompanied the recent statutory amendments, and argued that the provisions of the new amendment did not affect a final judgment of divorced entered before the effective date of the amendments, September 10, 2014.
The motion judge heard oral arguments and issued an order that rejected Nancy’s argument that modification was not proper, and analyzed Patrick’s motion by applying the rebuttable statutory presumption and factors enumerated in N.J.S.A 2A:34-23(j)(1). The judge concluded that Nancy failed to overcome the presumption that alimony terminates when a supporting spouse reaches retirement age.
On appeal, the New Jersey Appellate Division started its opinion by stating that their review of an order of the Family Part is limited, and they defer the factual findings of the lower court as long as those same findings are “supported by adequate, substantial, and credible evidence” in the record. A reversal of a Family Part order is only warranted when a higher court determines that the trial judge must have made a mistake because the trial court’s factual findings are so clearly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence that they offend justice. Nevertheless, this special deference does not apply to reviewing legal conclusions.
The New Jersey Appellate Division explained that in New Jersey, alimony awards are, for the most part, governed by statute. The power of the Family Part to modify an alimony order comes from the preamble to N.J.S.A 2A:34-23 which provides that the court can revise and alter alimony orders as circumstances may require. Before the current amendments were enacted, New Jersey courts interpreted this law to require a party who sought modification to prove “changed circumstances,” and demonstrate that changed circumstances have significantly diminished the ability to support himself or herself. Reduced income from a good faith retirement, after the age of sixty-five, is a valid change of circumstances that will trigger a detailed review of both parties’ financial situation to evaluate the impact retirement has on an alimony award.
The September 2014 amendments added a new subsection (j). This subsection listed objective factors a judge must examine and weigh when reviewing a supporting spouses request to modify or terminate alimony when he or she retires. The legislative history attached to the 2014 amendments to the alimony law illustrates the legislatures recognition of the need to uphold past agreements executed, or final orders of divorce issued prior to the adoption of the new statutory amendments. Subsection (j) differentiates alimony awards issued before the amendment’s effective date, and those issued after the amendments. Thus, this unambiguous amendment does govern a court’s analysis of alimony modification requests stemming from the retirement of the supporting spouse, but only when the original date of the alimony award is after the effective date of the statute. Therefore, subsection (j)(3) applies when a retirement motion is filed in cases in which there is an existing final alimony order or enforceable written agreement issued before the effective date of the amendments.
As a result, the rebuttable presumption enumerated in subsection (j)(1), which places the burden on the spouse receiving alimony to prove continuation of the alimony is necessary once the supporting spouse reaches full retirement age, is replaced by a different standard provided in subsection (j)(3) for alimony awards entered prior to the amendments. This subsection closely follows the principles outlined in the paramount New Jersey Supreme Court case of Lepis v. Lepis, by requiring the court to consider the ability of the spouse receiving alimony to have sufficiently saved for retirement, as well as a number of factors to determine if the supporting spouse has proven, by a preponderance of the evidence, that modification or termination of alimony is appropriate. Unlike subsection (j)(1), subsection (j)(3) places great importance on the ability of the spouse receiving support to have properly saved for retirement. Under subsection (j)(1), this was listed only as a factor, whereas subsection (j)(3) sets it apart from other considerations and explicitly requires its analysis.
Therefore, the New Jersey Appellate Division concluded that the judge’s incorrect reliance on subsection (j)(1) could not be upheld. New Jersey courts have no choice but to comply with the Legislatures clear intent, and every word in a statute must be read as if it was deliberate. As a result, the New Jersey Appellate Division vacated the order dated March 27, 2015, and ordered a new trial with the Family Part judge to conduct the proceeding as he or she deems necessary and to apply the burden of proof and specific standards enumerated in New Jersey Statute 2A:34-23(j)(3).
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