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The Last Stand for Permanent Alimony in Mid-length Marriages?

As recently discussed in an earlier blog post, the New Jersey Legislature is considering legislation that would abolish permanent alimony and regulate the term and amount of all alimony awards.  Without that legislation, the right to and the responsibility to pay permanent alimony will continue to be controlled by trial judge’s discretion.

Most commentators on matrimonial law would agree that the length of the marriage is the most important factor in determining if permanent alimony is appropriate in a specific matter.  Many have begun to argue that permanent alimony is limited to marriages of twenty years or more and that marriages ranging from ten to fifteen years are mid-length marriages in which permanent alimony is never appropriate.  This is despite the decisions in Robertson v. Robertson, 381 N.J. Super. 199 (App. Div. 2005) where a thirty-nine year old woman who gave up employment to raise children in a twelve year marriage, and Hughes v. Hughes, 311 N.J. Super. 15 (App. Div. 1998) where a ten year marriage was found not to be of short duration, in which the appellate Court concluded that permanent alimony was justified in each of these cases.  Despite these reported decisions, this pervasive proposition has found support in a series of unreported appellate decisions.

On August 8, 2013 our Appellate Division, in a well reasoned decision authored by Judge Lihotz, rejected the lines drawn in the sand by the commentators and recent unreported decisions. In determining whether an award of permanent alimony was appropriate.  In Gnall v. Gnall, N.J. Super (App. Div. 2013) the parties had been married for thirteen years and had three children ages fourteen, thirteen and eleven.  The wife, who had earned a top salary of $115,000 stopped working six years into the marriage to raise the parties’ children.  The husband’s income had risen meteorically during the marriage from $510,000 in 2005 to $2,100,000 in 2010.  Facts matter when a court is exercising it’s discretion and the husband’s income in this matter was certainly rarified.  However, the decision of the Appellant Division in determining that the wife was entitled to permanent alimony is important and has broad application.

In considering the type of alimony to be awarded in this matter the Appellate Court first looked to the currently existing statute, N.J.S.A. 2A: 34-23b, which sets forth the factors the court is to consider in molding an alimony award, specifically:

(1) The actual needs and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and employability of the parties;

(6) The length of absence from the job market of the party seeking maintenance;

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or training to enable the party  seeking maintenance to find employment;

(9) The history of financial or non-financial contributions to the marriage or civil union

(10) The equitable distribution of property;

(11) The income available to either party through investments or assets;

(12) The tax consequences of alimony; and,

(13) Any other factor.

The court indicated that all these factors needed to be weighed by a trial court in forming an alimony award.  In looking at the statutory factors, the Appellate Court recognized that the length of the marriage is the “significant determining factor” and the “defining distinction” in deciding between limited duration and permanent alimony.

In rendering it’s decision, the court found that a fifteen year marriage was not one of short duration and that permanent alimony is not limited to marriages of twenty years or more.  Here, where the wife would not be able to attain the lifestyle created by the parties during the marriage without the benefit of economic assistance from the husband, a right to permanent alimony was created.

As the debate over the appropriateness of legislation substantially dulling the trial court’s ability to mold alimony awards to the facts of the individual matter continues, the Gnall decision certainly stands in stark contrast to the probable outcome in mid-length marriages under A 3909 and S 2750.