If you are getting divorced after a long marriage, one of your biggest financial concerns may be alimony. "How long will I have to pay it?" Or, if you are financially dependent on your spouse: "How long can I expect to receive it?"
For some longer marriages, New Jersey law allows for open durational alimony. The name can make it sound as though you are agreeing to alimony for the rest of your life. That is not necessarily what it means.
Open durational alimony begins without a predetermined termination date. Whether it continues, changes, or eventually ends depends on the terms of your agreement or court order and what happens in the years afterward.
Open durational alimony replaced what New Jersey law once called permanent alimony. The difference in terminology is important.
An open durational award does not say, “You will pay alimony for exactly 10 years.” Instead, the obligation begins without a specific end date.
That does not mean the obligation can never change. Retirement, remarriage, cohabitation, significant financial changes, and other circumstances may affect an existing alimony obligation, depending on the facts and the terms of the original agreement or order.
Think of “open” as meaning there is no fixed termination date at the beginning, not that alimony is guaranteed to continue forever.
No. The 20-year mark is important under New Jersey alimony law, but reaching it does not automatically entitle one spouse to open durational alimony. The court still has to consider the financial circumstances of both spouses and the statutory alimony factors.
A couple who was married for 25 years and earned similar incomes throughout the marriage presents a very different situation from a 25-year marriage in which one spouse built a successful career while the other spent decades outside the workforce raising the children.
The length of the marriage matters. So does what happened financially during those years.
For marriages lasting less than 20 years, New Jersey generally limits the duration of alimony to no longer than the marriage itself unless exceptional circumstances justify a longer term.
There is no single factor that decides the issue.
A court may consider factors including:
The court is looking at the entire economic history of the marriage and the position each spouse will be in after it ends. That is why two marriages of exactly the same length can produce very different alimony results.
How long alimony lasts and how much alimony is paid are separate questions. Even if open durational alimony is appropriate, you still have to determine the amount.
That analysis can involve salary, bonuses, commissions, business income, deferred compensation, investment income, employment benefits, living expenses, earning capacity, and the marital lifestyle.
In a financially complicated divorce, figuring out someone's actual income can be one of the biggest disputes in the case.
A business owner, for example, may have a tax return that does not tell the complete story of the money available to support the family's lifestyle. An executive may receive substantial compensation through bonuses, stock awards, or other benefits beyond base salary.
Before you negotiate long-term alimony, make sure you understand the income you are using to calculate it.
Potentially. A substantial change in circumstances can sometimes support a request to modify an alimony obligation. Depending on the situation, that might include an involuntary job loss, a significant change in income, disability, serious illness, retirement, or changes involving the spouse receiving support.
But there is an important distinction between something changing in your life and your alimony obligation legally changing.
If you are paying $5,000 per month and lose your job, you generally should not simply decide that you will now pay $2,500. An existing agreement or court order remains important unless and until the obligation is properly modified.
The same principle applies when retirement approaches.
Open durational alimony does not necessarily continue unchanged after retirement.
New Jersey law contains specific provisions addressing retirement and alimony, including a rebuttable presumption of termination at full retirement age for cases governed by the current statutory framework. The analysis can differ for older alimony agreements entered before the 2014 changes to New Jersey's alimony law.
Early retirement can be more complicated because the court may need to determine whether the decision to retire was reasonable and made in good faith.
The practical point is this: do not assume retirement automatically ends your obligation, and do not simply stop paying.
If retirement is approaching, review your agreement well before your final day of work so you understand what it says and what legal steps may be necessary.
These are also different issues. Remarriage by the spouse receiving alimony generally has a much more direct effect on the support obligation.
Cohabitation can also affect alimony, but the analysis is more complicated. Sharing a residence is not the only issue. Courts can examine the nature of the relationship, intertwined finances, shared expenses, household responsibilities, and other evidence of a mutually supportive relationship.
And two people do not necessarily have to live together every night for cohabitation to become an issue. If either remarriage or cohabitation is likely to matter in your case, the language of your settlement should address it as clearly as possible.
This is where I would pay particularly close attention in a long-term marriage. When you negotiate open durational alimony, you are not just negotiating this year's monthly payment. You are creating rules that may still matter ten or fifteen years from now.
Your agreement should clearly address the amount of alimony, when payments begin, what can trigger modification or termination, what happens at retirement, how remarriage or cohabitation will be handled, whether life insurance is required, and what financial information the parties must exchange in the future.
If you intend any provision to be nonmodifiable, that deserves particular attention. Don't rely on what you and your spouse think you agreed to. Put it in the agreement. A sentence that seems unimportant while you are trying to finish your divorce can become the center of an expensive court dispute years later.
If you are negotiating alimony after a long marriage, it is easy to become fixated on one number. “I can live with $4,000.” “I need $6,000.” “I won't pay more than $5,000.”
But the monthly amount is only part of the deal.
You also need to understand how long the obligation could continue, what happens when income changes, what happens at retirement, whether the recipient is expected to become more self-supporting, how cohabitation will be treated, and what happens if either person's health or financial circumstances change.
For someone paying support, those details can affect retirement planning and long-term financial security. For someone receiving support, they can determine whether income they are relying on will still be there years from now.
Open durational alimony should be negotiated with the future in mind, not just the financial circumstances you have today.
If you are facing divorce after a long marriage and want to better understand alimony, property division, retirement, and the other financial decisions you may face, my free Divorce Smarter Course explains the New Jersey divorce process in plain English.
Until next time,
Steve