Lawyers came out in force at a legislative hearing Monday to oppose a bill that would abolish permanent alimony and make other drastic changes to New Jersey law on spousal support.
The measure, A-3909, would set guidelines providing that alimony should generally not exceed the “need” of the recipient or 30 percent to 35 percent of the difference in the parties’ income. Judges could attribute income to a party deemed to be voluntarily unemployed or underemployed, and they could “deviate” from the limit because of advanced age, chronic illness, tax considerations and other “relevant and material” factors set forth in written findings.
It would also make it easier to terminate or modify awards. Judges could reduce or stop alimony based on three months’ cohabitation, rehabilitative alimony would be limited to five years and alimony would end when the person paying it reaches the eligibility age for full Social Security benefits, which is 67 for those born after 1959, and no more than two years sooner for everyone else.
Existing alimony awards could be modified retroactively so long as a motion is filed within two years of the law’s effective date and the parties had not agreed that the alimony should be unmodifiable.
Lawyers and bar association representatives who appeared before the Assembly Judiciary Committee on Monday almost uniformly opposed A-3909 and urged support for an alternative that would replace references to “permanent alimony” with the phrase “alimony of indefinite term.”
That measure, A-4525, provides that modifying or extinguishing an alimony obligation based on actual or prospective retirement would require a showing that the retirement was reasonable and being done in good faith based on factors like the parties’ age and health, their retirement expectations during the marriage and the generally accepted age of retirement in the paying party’s field of employment.
People who lose their jobs would be allowed to seek modification on that ground after 90 days out of work. Any relief ordered could be made retroactive to the loss of the job or income drop.
Cohabitation, even if not full time, could provide a justification for terminating or suspending alimony but there is no specified time frame and how long the couple have been living together would be a factor.
A-4525 is the joint work product of the Matrimonial Lawyers Alliance of New Jersey, the New Jersey State Bar Association’s Family Law Section and the New Jersey chapter of the American Association of Matrimonial Lawyers. Several county bar associations, including Essex, Bergen and Morris, have passed resolutions in support.
Assemblyman Charles Mainor, D-Hudson, the sponsor of A-3909, which has bipartisan support, testified that it was based on a law enacted in Massachusetts in 2011 and reflects a trend toward similar reforms elsewhere, including Connecticut and Colorado. Mainor also said it is consistent with the current reality in which both spouses are likely to be working and equal job opportunities exist for women and men.
The existing law is ripe for abuse and manipulation, Mainor said, adding that he had been told by matrimonial attorneys that the amount of alimony depended on the quality of the lawyer.
Assemblyman Thomas Giblin, D-Passaic, sponsor of A-4525, acknowledged the need to alter the law and said his bill is an attempt to do so responsibly by respecting the ability of judges to take into account the nature of the case and the parties’ circumstances.
He echoed many of the lawyers who expressed concern that A-3909’s guidelines would interfere with judicial discretion, stating “judges must not be handcuffed.”
The bill bases duration of alimony on how long the marriage or civil union lasted. At the low end, five years or less, it provides for support for a period of no longer than half the time the marriage lasted, rising to 80 percent for marriages of 15 to 20 years. For marriages or civil unions lengthier than that, judges would have discretion to award alimony for an indefinite period.
Jeralyn Lawrence, of Norris, McLaughlin & Marcus in Somerville and chairwoman-elect of the State Bar’s Family Law Section, said A-3909’s “cookie cutter” formula has no place in Family Court, “a place of fairness and equity,” where “circumstances and facts matter.” For instance, A-3909 would treat two marriages of the same length identically even if in one but not the other, twins were born or one spouse sacrifices a career for family reasons. “Commitment matters,” she added.
Lawrence said she and her colleagues represent both those who pay and those who receive alimony and thus have “no ax to grind.” She took issue with Mainor’s assertion of gender equality in the workplace, citing statistics on women’s lower earnings.
Family Law Section chairman Brian Schwartz of Summit told the committee that A-3909 does not address postjudgment litigation over alimony and expressed doubt that women no longer face job bias.
In a subsequent interview, he countered suggestions that lawyers oppose A-3909 out of self-interest, saying its retroactivity would generate lots of work as people sought modifications.
Schwartz and John Trombadore of Somerville, who also testified, said the retroactive aspect is unconstitutional under the ex post facto and contract clauses. A similar bill passed in Florida this year was vetoed on that ground.
Somerset County Bar President Amy Wechsler, of Shimalla Wechsler Lepp & D’Onofrio in Warren, testified that even though A-3909 says judges can deviate on the amount, they are not likely to do so based on how they have adhered to child support guidelines. “Once you have set up guidelines, that’s what people follow,” she said.
David Perry Davis, a Pennington solo and family law practitioner who helped draft A-3909, called it “nonsense” to suggest the bill takes a one-size fits all approach, given the multiple grounds for deviating from the standard award. He suggested that a concern for billable hours underlies the opposition from the bar, contrasting its stance with the strong public support for getting rid of permanent alimony found in a recent Eagleton Institute poll.
In an interview, he said that child support guidelines have worked well and the “bar association won’t admit that the system is broken,” adding there are lawyers who agree with him but don’t want to stand up to the group.
Another lawyer who spoke in support of A-3909 was Karl Piirimae, who does real estate development law at Windels Marx Lane & Mittendorf in New Brunswick. He became involved in the effort based on his own divorce experience, saying it took seven years and hundreds of thousands of dollars to end his eight-year marriage.
Citing statistics that judges decide alimony in fewer than 1 percent of cases, he questioned why guidelines should not be available to help those in the other 99 percent agree on a sum.
Piirimae said a revised and soon-to-be-filed version of A-3909 incorporates parts of A-4525; eliminates maintaining the marital standard of living as a factor in alimony; and exempts incomes of $370,000 and above from the guidelines, conceding they don’t work well when applied to “ultra-high-wage earners.”
Several who spoke, including Christine Bator of the New Jersey Women Lawyers Association and Francisco Rodriguez, president of the New Jersey Association for Justice, supported forming a commission to study the issue first.
Such a commission would have been created by AJR-32/36, which passed the Assembly in June 2012 but stalled in the Senate Judiciary Committee. ■