If you are preparing to end your marriage in New Jersey, you might have heard the phrase ‘open duration alimony.’ Open-duration alimony is one of several types of alimony that might be awarded in New Jersey divorce cases; it is only awarded for marriages that meet certain length criteria, among other factors.
It is important to note, however, that alimony is never guaranteed is any proceedings.
If you are dependent on your spouse's income and are concerned about your ability to support yourself without alimony after your divorce, here's some information from Ziegler Law Group, LLC about open-duration alimony to help you understand whether you might be eligible. Similarly, if you believe you might be ordered to pay alimony to your spouse, you should understand open duration alimony in NJ and work with a divorce lawyer in New Jersey to protect your interests.
What is Open-Durational Alimony?
Open-durational alimony is a type of spousal support that was created by the legislature to replace permanent alimony in New Jersey divorces in 2014. Previously, permanent alimony was the common practice in divorce cases. When it was ordered, payments would continue from the order date until the recipient remarried or the paying spouse passed away.
Unlike permanent alimony, open-duration alimony is not permanent. Rather, it will continue until the paying spouse reaches age 67, the age at which people become eligible for full Social Security retirement benefits. Open-duration alimony will also end when the recipient remarries or enters into a new cohabiting relationship. The duration of this type of alimony can be extended by agreement or upon a motion by the receiving spouse past retirement in some cases. It can also be terminated early by agreement from both parties.
Open-duration alimony is not available in every divorce. Instead, it is restricted to only those marriages that lasted at least 20 years. If your marriage lasted less than 20 years, a different type of alimony might be ordered.
Other Types of Alimony in NJ
In addition to open-duration alimony, the following types of alimony might be ordered in a divorce:
- Pendente litealimony - This is a temporary alimony that may be granted upon the receiving spouse's request after a divorce has been filed and only lasts until the final divorce decree.
- Rehabilitative alimony - This is a type of alimony that might be ordered to support the recipient while they attend college or a vocational training program to gain work skills that will help them find suitable employment.
- Reimbursement alimony - Reimbursement alimony might be awarded to the recipient spouse if they supported the payor while the payor attended college or graduate school and enjoyed a resulting career advancement.
- Durational alimony - This is alimony that might be awarded for a set period lasting a maximum of the duration of marriage, it is most common in marriages lasting less than 20 years.
What Factors Influence Open-Duration Alimony?
If your marriage lasted 20 or more years, and there is a large gap in the incomes between you and your spouse, open-durational alimony might be a factor in your divorce. Alimony might be awarded when the financially dependent spouse requests it in the divorce, but it's not guaranteed.
Judges consider multiple factors when deciding whether an award of open-durational alimony is warranted, and if so, how much to order. The factors are listed in N.J.S.A. 2A:34-23 and include the following:
- The requesting spouse's need for support
- The other spouse's financial ability to pay alimony
- How long the marriage lasted
- Each spouse's level of education, income, capacity to earn an income, and work skills
- How long the requesting spouse has been out of the workforce
- Each spouse's parental responsibilities
- How long it might take the requesting spouse to complete an education or training to find a job
- Contributions made by each spouse to the marriage, including child-rearing and homemaking responsibilities
- How the property and debts will be divided
- The investment income of each spouse
- Tax consequences of alimony for each spouse
- Amount of any pendente lite support that was ordered
- Other relevant factors
Determining alimony is a complex process since it requires the consideration of numerous factors. Just because a spouse requests it doesn't mean the court will order it. In most cases, it's in the best interests of both spouses to try to negotiate an alimony agreement as a part of their settlement agreement instead of leaving it up to the court. Negotiating an agreement allows the parties to have more control over the outcome and achieve a resolution that is fair to both.
Modifying and Terminating Open-Duration Alimony
In most cases, courts won't terminate open-duration alimony early unless there are substantial differences in the financial conditions of the spouses since the time the order was entered. For example, if the receiving spouse has started to earn a higher income than the payor through employment, the payor might file a request with the court to end the alimony payments early.
An alimony modification is more likely to be granted than an early termination. If a paying spouse has experienced a significant change in their financial circumstances since the order was issued, they can file a modification request with the court. They will have the burden of showing the change in circumstances warrants a modification or termination of the alimony. For example, if the payor has lost their job, and the job loss is likely to be permanent, the court might grant a modification of the alimony amount.
It's important to note that the court will not modify or terminate alimony based on a payor's voluntary unemployment. For example, if you quit your job to try to get out of paying alimony, the judge will look at the data from the New Jersey Department of Labor for what other people with the same job and education level make on average. They will also consider your earnings record and then impute income to you based on your earnings capacity. Both spouses can also file an agreement with the court to modify or terminate alimony.
Unless the requesting spouse files a request for an extension supported by evidence, open-duration alimony will end when the paying spouse turns 67. It will also end when the recipient gets married again or is in a cohabiting relationship with someone else.
In some cases, alimony can be extended beyond retirement age. The recipient can file a motion with the court asking for an extension and will have to show why alimony should be extended.
Common Misconceptions About Open-Duration Alimony
Some common misconceptions about open-duration alimony include:
- Open-durational alimony is permanent. Open-durational alimony is not permanent. It does not last for the rest of the paying spouse's life, but will end when they retire, except in rare circumstances.
- The spouse who receives alimony is always the woman. Historically, women have been more likely to be awarded alimony, however, this is no longer the standard. Either spouse can be awarded alimony when there is a substantial difference between their incomes, leaving one spouse financially dependent on the other spouse.
- Alimony is guaranteed when requested. A court won't automatically award alimony just because a spouse requests it. Instead, the court will consider multiple factors before deciding whether an alimony award is appropriate, denying requests ruled to be unreasonable.
How to Request Open-Durational Alimony
You can request open-durational alimony in the divorce complaint if you are the person petitioning for a divorce. If you are the respondent, you can ask for open-durational alimony in your answer to the divorce complaint. You can also file a motion for pendente lite alimony while the case is pending; these are temporary alimony payments that would last until the final divorce decree is issued in your case to help you tend to your financial obligations.
Tax Implications of Open-Durational Alimony
The Tax Cuts and Jobs Act (TCJA) changed the tax treatment of alimony under federal law. This law means that any divorce finalized on or after Jan. 1, 2019, that includes an open durational alimony order, will require both spouses to alter the way in which their alimony payments are given/ received.
Under the TCJA, the spouse paying (‘payor’) alimony cannot deduct alimony payments on their federal income tax returns and the receiving spouse is not required to report the payments they receive as income on their federal returns.
However, New Jersey state law is different. On state income tax returns, the payor can claim a deduction for alimony payments, and the recipient will have to claim the amounts received as income.
It's important to include discussions of the tax consequences of alimony in your negotiations to better understand your options.
Talk to a Divorce Lawyer in New Jersey
If you have been married for 20 or more years and have a significant gap in income between you and your spouse, you should consult an experienced divorce lawyer in New Jersey about whether open-durational alimony might affect your case. Contact Ziegler Law Group, LLC today to schedule a confidential consultation by calling us at (973) 533-1100.
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