Although alimony is not a pertinent issue in every divorce in New Jersey, it does come into play for some cases. When alimony is ordered, it might be structured in a few different ways. One type is open durational alimony, which does not have a set end date. Open durational alimony is similar to what used to be known as permanent alimony.
In 2014, the state legislature changed New Jersey's alimony laws and ended permanent alimony. This type of alimony could be ordered when the court determined the lower-earning spouse would never be likely to become fully self-supporting. This structure ended upon the payor’s retirement. While open durational alimony also doesn't have a set end date, it will end once the payor retires unless the recipient presents evidence to rebut that presumption. It also can't be ordered unless a couple was married for a minimum of 20 years.
When you're going through a divorce and believe that alimony might be awarded, it's important to understand whether you might be ordered to pay or receive open durational alimony. If your marriage lasted less than 20 years, open durational alimony will not be on the table. However, a different type of alimony might be awarded. Here is some information about open durational alimony from a divorce lawyer in New Jersey at the Ziegler Law Group, LLC.
Understanding Alimony
In New Jersey, alimony is also known as ‘spousal maintenance’ or ‘spousal support.’ Regardless of the type of alimony that might be ordered, the term refers to support payments one spouse is ordered to pay to the other spouse during or after a divorce or the termination of a civil union. Courts might order alimony in situations in which one spouse earned substantially less than the other spouse and was financially dependent on them. There are a few different types of alimony that differ in duration and reasons why they might be granted.
Types of Alimony in New Jersey
New Jersey now has the following five types of alimony:
• Pendente lite alimony: This type of alimony is temporary and might be ordered while a divorce is pending. The lower-earning spouse can file a request for pendente lite support with the court. If ordered, the payor spouse will have to make support payments to the other spouse until the court issues the final divorce decree. Pendente lite support ends when the divorce case ends. The court may or might not order a different form of alimony that will continue after the final divorce decree.
• Limited duration alimony: In some cases, the court will order a type of temporary alimony called limited duration alimony. This type of alimony is ordered based on how long it might take for the receiving spouse to become financially self-supporting. Once the milestone is achieved, the payments will end. The time to reach the goal is set by the court in the orders. While the payment amount might be changed based on substantial changes in financial circumstances, courts typically will not adjust the total time during which alimony payments must be paid.
• Rehabilitative alimony: The court might order rehabilitative alimony in cases in which the lower-earning spouse has been out of the workforce or has only worked in remedial job environments. Rehabilitative alimony might be ordered while the spouse attends college or a training program to gain work skills and become self-supporting.
• Reimbursement alimony: Reimbursement alimony might be awarded when one spouse contributed money to help pay for the other spouse's training or college with the expectation they would benefit from the spouse's career and increased income. For example, if one spouse worked to support the couple while the other spouse attended law school, they might be awarded reimbursement alimony to be repaid for the support they provided to the spouse who subsequently became a lawyer thanks to their financial contributions.
• Open durational alimony: The final type of alimony a New Jersey court might order is open durational alimony. This type of alimony doesn't have a set end date, but it won't be ordered unless a marriage has lasted a minimum of 20 years. Open durational alimony will be explored further below.
What Is Open Durational Alimony in NJ?
Open durational alimony was created when New Jersey's new alimony law was enacted on Sept. 10, 2014. It is only available in marriages that lasted 20 or more years and doesn't have a specific end date. However, there is a rebuttable presumption that open durational alimony will end when the payor reaches retirement age.
Unlike permanent alimony, open durational alimony might not be permanent. Open durational alimony will not be awarded when a marriage lasted less than 20 years. If ordered, the payments will continue until the recipient spouse remarries, the payor spouse retires, or the recipient spouse enters a relationship with someone else as if they are married. When there is a change in the financial circumstances of either spouse, they can file a request to modify the payment amounts.
Factors Considered in Open Durational Alimony
When awarded, open durational alimony is not a permanent form of alimony. It was created to replace permanent alimony, which used to be fairly common in New Jersey divorces. While open durational alimony doesn't have a fixed end date, it has some limitations that didn't exist for permanent alimony. The most significant limitation is that open durational alimony can't be awarded when a marriage lasted less than 20 years.
Under N.J.S.A. 2A:34-23, courts consider the following factors when deciding whether to award alimony of any type, including open durational alimony:
- The lower-earning spouse's need for alimony
- The higher-earning spouse's ability to pay alimony
- Length of the marriage or civil union
- The ages of both spouses
- The physical and mental health of each spouse
- Each spouse's work skills, education level, employability, and earnings history
- The standard of living the spouses enjoyed during the marriage
- Likelihood the spouses will maintain the same standard of living after the divorce
- How long the person seeking alimony has been out of the job market
- Responsibilities each spouse has for child-rearing
- How long it will take and the expense involved in completing vocational training or college
- How the spouses' property and debts are equitably distributed
- Tax consequences of alimony
- How long pendente lite support has been paid and how much the payments have been
- Any other relevant factors
An award of alimony is not guaranteed. Instead, the court will carefully consider the specific circumstances of each spouse before deciding whether an order of alimony is legally warranted when it is requested.
Length of Open Durational Alimony
Open durational alimony doesn't have a set end date and will continue from the time the court issues the order until the payor becomes eligible for Social Security retirement benefits, the age of full eligibility is currently 67. Open durational alimony can be terminated if the recipient enters a relationship that is similar to marriage, without legally marrying the new partner. It will also end if the recipient remarries or the payor spouse dies. In some cases, the court can shorten open durational alimony or extend it past retirement based on a request by either party and the presentation of evidence. The parties can also agree to extend or shorten the duration of support.
When Can Open Durational Alimony Be Terminated or Modified?
Upon the request of a party, the court can modify or terminate alimony under the following changes in circumstances:
- The recipient's remarriage
- The recipient's cohabitation with a new partner
- The payor's permanent unemployment
- The payor becomes disabled
- When the recipient's income grows and exceeds the payor's income
The payor spouse's reaching retirement age is presumed to terminate open durational alimony. However, the court can end alimony before that time or order an extension past the payor's retirement when the petitioner shows that the result would be proper under the circumstances. The petitioner has the burden of proof and must present evidence to overcome the presumption, however.
The payor can also request early termination of alimony if they retire before reaching age 67. They will need to present evidence, and the court will consider the following factors:
- Each party's age
- The average retirement age of others in the field
- What age the parties anticipated retiring while married
- Whether the payor can afford to continue paying support
- The recipient's ability to be self-supporting
How Can an NJ Divorce Attorney Assist Me With Open Durational Alimony?
Since open durational alimony can last for years, an order for it can result in a much higher amount paid to the recipient than an award of any of the other types of alimony in NJ. It can also be more financially burdensome for the payor.
If you believe you are eligible for open durational alimony or might be ordered to pay it, you should consult a divorce lawyer in New Jersey at Ziegler Law Group, LLC. In order for open durational alimony to be a potential issue, your marriage must have lasted at least 20 years. However, other factors will be considered based on your unique circumstances. An attorney can explain the factors that might be considered and build an argument for or against alimony in line with your interests.
To learn more about your rights and whether alimony might be awarded, you should speak with us as soon as possible. Call us to schedule a consultation at (973) 533-1100.
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