Alimony is never a guarantee in New Jersey divorces. Long-term alimony (extending beyond a decade) is unlikely except under certain circumstances. A significant disability that prevents a dependent spouse from working may be considered one such extenuating circumstance.
This was the case in W.S. v. S.S., a matter recently before the Superior Court of New Jersey Appellate Division.
According to Court records, the husband and wife were wed in 2002. Both were employed at the time. When the wife was pregnant with her second child, she learned she had a non-cancerous brain tumor that prevented her from working. The Social Security Administration declared her totally disabled in 2006. Shortly after the diagnosis, the husband filed for divorce.
Our Hackensack alimony attorneys would note that this was prior to the 2014 New Jersey alimony law update, where the term “permanent alimony” was replaced with “open durational alimony,” and finding that absent exceptional circumstances, alimony can’t exceed the length of the marriage for those that lasted longer than 10 years. However, the circumstances of this case might qualify as “exceptional” even under the provisions of the new law.
Per the couple’s property settlement agreement, the Judge ordered the ex-husband to pay $2,000 monthly in alimony to his former wife, based in part on her inability to work due to her disability. Per N.J.S.A. 2A:34-23, the law allows consideration of one of the four types of alimony based on a host of factors, including the length of the marriage, the actual need/ability of parties to pay, the standard of living established during the marriage, and the health of both parties. Per the terms of this couple’s property settlement agreement, the $2,00-a-month alimony was to continue for at least 10 years. At that point, the former husband would be entitled to rebut the presumption of his ex’s disability and continued need for alimony, with the understanding that he bore the proof burden.
After 10 years, the husband sought an evaluation of his ex’s condition by a medical expert and an order to end the alimony if the evidence showed she was no longer disabled. In the alternative, he sought an order modifying the alimony if he were able to establish his former wife was able to earn more income than she claimed her disability allowed. The litigation went back-and-forth, with the Court initially denying the husband’s request to terminate, but later granting it after finding the wife failed to provide complete responses on finances during discovery. Ultimately, once those responses were submitted, alimony was reinstated, with retroactive payments ordered from the time they’d ceased during the litigation. The Court held that the ex-husband failed to make a prima facie showing of a change in circumstances warranting an end to the payments.
Bottom line: Even though New Jersey’s law has imposed some limitations on alimony, long-term payments (open duration) can still be awarded.
One final consideration you’ll want to bear in mind, particularly if you’re the recipient, is the impact alimony might have on your federal disability payments. If you are receiving SSDI (Social Security Disability Insurance) benefits, this is not a significant concern, as this type of disability payment is not need-based. Rather, it’s based on the amount of income you earned while working. Your alimony shouldn’t have any impact. However, if you are receiving SSI (Supplemental Security Income) benefits, alimony payments could reduce your government payments. This is something you’ll want to carefully consider with your alimony attorney before signing off on any final agreements.
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