Current Trends in Alimony Laws

Less Judicial Discretion and Less Alimony

Since the time that fault-based divorce fell into disfavor, and no-fault divorce became commonplace, there have been significant ebbs and flows in the nationwide trends of alimony.

Following the shift in alimony in the wake of no-fault divorce, the 1990s created another noticeable change. There was a nationwide push away from the historic concepts of alimony and broad assumptions thereto, and a swing toward evaluating the actual facts presented within each family and each case. Mary Kay Kisthardt, Re-thinking Alimony, J. Am. Acad. Matrimonial Law, Vol. 21 (2008). Even then, there was a general dissatisfaction with the varying outcomes in each case, an issue, it seems, which may never have been resolved.

Since that time, there has been yet another trend in alimony nationwide, now commonly referred to as “alimony reform.”

In the States

Leading the way in 2012, after several years of review and various drafts, was Massachusetts' significant revamp of its alimony laws. While previously operating under a scheme coined “Alimony for Life,” effective March 2012, the term of an alimony obligation in Massachusetts became a formulaic calculation. For a marriage between five and 10 years in duration, by way of example, the term of alimony cannot now exceed 60% of the length of the marriage, measured in months. This is a substantial and significant narrowing of alimony statewide. With the application of a strict formulaic calculation, too, judicial discretion was significantly abridged.

As currently enacted, alimony in New Jersey has been significantly curtailed from its predecessor statute, lessening the payor spouse's potential exposure. Notably, it has also taken a measure of the discretion out of the judge's hands, which is also proving to be a current, nationwide trend. Permanent alimony has been abandoned in favor of “open durational,” in which the term of alimony usually does not exceed the length of the marriage (although a court has some discretion to vary the term), and neither party has an entitlement to live at a greater standard of living than the other. New Jersey Statutes Annotated (N.J.S.A.) 2A:34-23.

Florida, too, is on its way to following in the footsteps of states like Massachusetts and New Jersey. There is a bill currently pending — though already twice rejected by the state's Governor — which, in practice, would seem to mirror the New Jersey statute by taking significant discretion away from the court. Formulas would be implemented, in lieu of judicial discretion and consideration of factors, to determine both length and amount of alimony. Unless and until that bill is passed, however, the current Florida trend is distancing from the “lifestyle” analysis, and focusing more on actual, reasonable needs. In both instances, Florida is anecdotally also swinging toward a more narrow view of alimony.

Following the trend of reducing judicial discretion as to alimony amount and term, Illinois' recent alimony revisions all but eliminate any such judicial discretion. As of Jan. 1, 2015, there is a strict formula both as to term and amount of alimony, which must be followed by the judiciary. For example, a recipient of support in a seven-year marriage will receive alimony for a term of 40% of the seven years. As there may otherwise be in New Jersey in exceptional circumstances, there is no discretion of consideration for the unique facts of the case. The amount of alimony is also formulaic; specifically, a percentage of the parties' respective incomes, with a cap not to exceed 40% of the couple's joint incomes. Practically speaking, the current scheme in Illinois tends to mirror that which was previously implemented in Massachusetts, and represents a much more complete elimination of judicial discretion than in New Jersey.

Going in the Opposite Direction

Where some states are tightening the breadth of alimony and a court's discretion in awarding it, others appear to be swinging in the opposite direction.

Traditionally limited when awarding alimony over and above the division of community property, Texas has gradually expanded this concept in practice. As written, the statute has stringent caps on length of alimony for various reasons, such as violence within the marriage or a marriage lasting over 10 years. The courts in Texas are more apt to favor a disproportionate division of assets, if necessary, and rely on the use of assets as a means for future support. One could argue, though, that Texas, which traditionally did not allow alimony, is not “expanding” the concept of alimony, necessarily, but rather, catching up to many of the concepts employed by other states for years.

Practically speaking, California also appears to be swinging toward the expansion of alimony, particularly in the amount of a support award. While it is true that there has been no recent alimony reform or significant overhaul like in some other states, anecdotally, in practice, the courts are issuing more sizable support awards.

Keeping the Status Quo

While the nationwide trend certainly is leaning toward change — either practically or statutorily — other states as yet have not started “swinging.” Pennsylvania, by way of example, has not rushed to reform. In that state, there continues to be significant judicial discretion, and the absence of any formulaic approach or restrictions. All that the court must do is consider and apply the relevant factors (such as earnings, length of marriage, lifestyle, etc.) and render a decision. Presumably, this allows the trier of fact to assess the unique facts of each case, and make a determination accordingly. This is the exact discretion that states such as Massachusetts and Illinois have eliminated, and other states have curtailed.

Conclusion

There can be little doubt that the alimony pendulum is swinging. Each state may not be moving in the same direction; however, most states are moving. Alimony reform is now a commonly used phrase, and the push for change is ever present.

The question, then, is, will these changes be a friend or a foe? Will the implementation of formulas and guidelines “fix” what is thought to be a systematic and widespread issue, or will we be reminded of the changes in the 1990s that were intended to take account of the unique facts in each situation? Only time will tell.

*****
Laurence J. Cutler, a member of this newsletter's Board of Editors, is of counsel with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. Alyssa M. Clemente is an associate with the firm.

Deriving from the Ecclesiastical Courts in England, alimony or spousal support is the concept by which one spouse (traditionally the husband) provides financial support to the other spouse (traditionally the wife). In its initial iterations, fault was required to be granted a divorce, and thus, the notion of fault became necessarily linked to the concept of alimony.

In 1970, California became the first state to implement no-fault divorces, when the Family Law Act of 1969 was passed. New Jersey quickly followed. The remaining states then fell into line, creating the first wave of alimony changes: Should fault be considered in awarding alimony?

Considering fault in awarding alimony, or, in the alternative, denying a dependent spouse alimony, tended to become a moral issue, rather than a legal one. Elaine G. Rollins, Alimony Considerations Under No-Fault Divorce Laws, 57 Neb. L. Rev. 792 (1978). While it could have been expected that the elimination of the moral issue within the context of alimony would have led to predictability and uniformity, this has not been so.

Less Judicial Discretion and Less Alimony

Since the time that fault-based divorce fell into disfavor, and no-fault divorce became commonplace, there have been significant ebbs and flows in the nationwide trends of alimony.

Following the shift in alimony in the wake of no-fault divorce, the 1990s created another noticeable change. There was a nationwide push away from the historic concepts of alimony and broad assumptions thereto, and a swing toward evaluating the actual facts presented within each family and each case. Mary Kay Kisthardt, Re-thinking Alimony, J. Am. Acad. Matrimonial Law, Vol. 21 (2008). Even then, there was a general dissatisfaction with the varying outcomes in each case, an issue, it seems, which may never have been resolved.

Since that time, there has been yet another trend in alimony nationwide, now commonly referred to as “alimony reform.”

In the States

Leading the way in 2012, after several years of review and various drafts, was Massachusetts' significant revamp of its alimony laws. While previously operating under a scheme coined “Alimony for Life,” effective March 2012, the term of an alimony obligation in Massachusetts became a formulaic calculation. For a marriage between five and 10 years in duration, by way of example, the term of alimony cannot now exceed 60% of the length of the marriage, measured in months. This is a substantial and significant narrowing of alimony statewide. With the application of a strict formulaic calculation, too, judicial discretion was significantly abridged.

As currently enacted, alimony in New Jersey has been significantly curtailed from its predecessor statute, lessening the payor spouse's potential exposure. Notably, it has also taken a measure of the discretion out of the judge's hands, which is also proving to be a current, nationwide trend. Permanent alimony has been abandoned in favor of “open durational,” in which the term of alimony usually does not exceed the length of the marriage (although a court has some discretion to vary the term), and neither party has an entitlement to live at a greater standard of living than the other. New Jersey Statutes Annotated (N.J.S.A.) 2A:34-23.

Florida, too, is on its way to following in the footsteps of states like Massachusetts and New Jersey. There is a bill currently pending — though already twice rejected by the state's Governor — which, in practice, would seem to mirror the New Jersey statute by taking significant discretion away from the court. Formulas would be implemented, in lieu of judicial discretion and consideration of factors, to determine both length and amount of alimony. Unless and until that bill is passed, however, the current Florida trend is distancing from the “lifestyle” analysis, and focusing more on actual, reasonable needs. In both instances, Florida is anecdotally also swinging toward a more narrow view of alimony.

Following the trend of reducing judicial discretion as to alimony amount and term, Illinois' recent alimony revisions all but eliminate any such judicial discretion. As of Jan. 1, 2015, there is a strict formula both as to term and amount of alimony, which must be followed by the judiciary. For example, a recipient of support in a seven-year marriage will receive alimony for a term of 40% of the seven years. As there may otherwise be in New Jersey in exceptional circumstances, there is no discretion of consideration for the unique facts of the case. The amount of alimony is also formulaic; specifically, a percentage of the parties' respective incomes, with a cap not to exceed 40% of the couple's joint incomes. Practically speaking, the current scheme in Illinois tends to mirror that which was previously implemented in Massachusetts, and represents a much more complete elimination of judicial discretion than in New Jersey.

Going in the Opposite Direction

Where some states are tightening the breadth of alimony and a court's discretion in awarding it, others appear to be swinging in the opposite direction.

Traditionally limited when awarding alimony over and above the division of community property, Texas has gradually expanded this concept in practice. As written, the statute has stringent caps on length of alimony for various reasons, such as violence within the marriage or a marriage lasting over 10 years. The courts in Texas are more apt to favor a disproportionate division of assets, if necessary, and rely on the use of assets as a means for future support. One could argue, though, that Texas, which traditionally did not allow alimony, is not “expanding” the concept of alimony, necessarily, but rather, catching up to many of the concepts employed by other states for years.

Practically speaking, California also appears to be swinging toward the expansion of alimony, particularly in the amount of a support award. While it is true that there has been no recent alimony reform or significant overhaul like in some other states, anecdotally, in practice, the courts are issuing more sizable support awards.

Keeping the Status Quo

While the nationwide trend certainly is leaning toward change — either practically or statutorily — other states as yet have not started “swinging.” Pennsylvania, by way of example, has not rushed to reform. In that state, there continues to be significant judicial discretion, and the absence of any formulaic approach or restrictions. All that the court must do is consider and apply the relevant factors (such as earnings, length of marriage, lifestyle, etc.) and render a decision. Presumably, this allows the trier of fact to assess the unique facts of each case, and make a determination accordingly. This is the exact discretion that states such as Massachusetts and Illinois have eliminated, and other states have curtailed.

Conclusion

There can be little doubt that the alimony pendulum is swinging. Each state may not be moving in the same direction; however, most states are moving. Alimony reform is now a commonly used phrase, and the push for change is ever present.

The question, then, is, will these changes be a friend or a foe? Will the implementation of formulas and guidelines “fix” what is thought to be a systematic and widespread issue, or will we be reminded of the changes in the 1990s that were intended to take account of the unique facts in each situation? Only time will tell.

*****
Laurence J. Cutler, a member of this newsletter's Board of Editors, is of counsel with Laufer, Dalena, Cadicina, Jensen & Boyd, LLC, Morristown, NJ. Alyssa M. Clemente is an associate with the firm.