New Jersey Family Law Blog

If you live together and are not married or in a civil union, then consider a written agreement that covers property & future financial support

Image by firemedic58 via Flickr

A recent article on the BBC news web-site highlights the fact that marriage rates in the UK are at an all time low, in fact the lowest since records first started in 1862.  I don't know what the data is in New Jersey but indirectly what the UK data highlights is the number of people living in unmarried relationships, or cohabitation.

The legal problem with cohabitation is the lack of rights that are afforded in the case of a break-up or separation after a long period of time together. As previously discussed on this blog, unmarried couples who buy property together should consider signing a cohabitation agreement.

When it comes to support, verbal agreements as to future support are no longer enforceable. Governor Corzine before he left office signed into law, bill S2091 that now requires support agreements between unmarried couples to be in writing in order for a palimony claim to be enforceable.

Palimony is the right of an unmarried party to claim support from the other party where they have a marital-style relationship. A post last year on this blog, commented on whether such agreements should be in writing to be enforceable.

Given the increasing number of people living together outside of marriage/civil union, it is likely there will be more legal debate over cohabitation rights, and whether the badge of marriage/civil union is necessary to create enforceable rights. In the meantime, if you are living together, an agreement in writing should be considered if you own joint property or wish to have enforceable future financial support obligations in the event of separation.

Related articles by Zemanta

• Marriages dip again to record low (news.bbc.co.uk)
• Marriage rates in the UK (guardian.co.uk)
• Living together? Put it in writing (dare-to-dream.us)
• Wedded to outdated ideas on marriage (guardian.co.uk)

The different types of alimony in New Jersey

Image by owenstache via Flickr

It is beyond the scope of this blog post to go into the merits of alimony, but if you think you may have to pay alimony or should receive alimony as a result of a divorce or dissolution of a civil union, then there are four types of alimony in New Jersey to know about:

Permanent Alimony
This is typically awarded as a result of a long-duration marriage or civil union where one party is economically dependent on the other or has financial need, and the other has an ability to pay support to maintain the level of lifestyle that existed during the marriage or civil union.  Permanent alimony is a misleading title in the sense that it is open to modification by the court e.g. upon retirement, changed circumstances, so there is no guarantee that it will go on forever, only that when it is awarded, there is no time limit set on when it will end. 

In each case where alimony is sought, the court has to review the statutory factors set forth in the New Jersey alimony statute,  N.J.S.A. 2A:34-23(b):

1. The actual need and ability of the parties to pay;
2. The duration of the marriage or civil union;
3. The age, physical and emotional health of the parties;
4. The standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living;
5. The earning capacities, educational levels, vocational skills, and employability of the parties;
6. The length of absence from the job market of the party seeking maintenance;
7. The parental responsibilities for the children;
8. The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
9. The history of the financial or non-financial contributions to the marriage or civil union by each party including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
10. The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
11. The income available to either party through investment of any assets held by that party;
12. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
13. Any other factors which the court may deem relevant.

Rehabilitative Alimony
This is alimony that is typically paid for a short-term to enable a party to obtain economic self-sufficiency as a result of undertaking a training program, finishing education or obtaining necessary work experience.  Rehabilitative alimony is paid for a specific purpose and is not about maintaining the marital lifestyle.  An example of when this might be paid is where one party postponed their education to raise a family or support the other and now requires support to obtain education that will lead to gainful employment. Alimony payments cease when the dependent party has attained the ability to support him/herself.  However, it is possible to have an award of both rehabilitative and permanent alimony e.g. where a party may still have low-earning potential even after a period of rehabilitation and the length of the marriage/civil union, lifestyle and ability to pay supports this.

Limited Duration Alimony
Recognizing that an award of permanent alimony might not be appropriate for short-term marriages, the New Jersey Legislature in 1999 amended the alimony statute to allow the award of limited duration alimony i.e. payment for a defined number of years.  Courts may award limited duration alimony rather than permanent alimony to younger spouses who have good employment prospects and the ability to return to the workforce.  However, if all the statutory factors in N.J.S.A. 2A:34-23(b)(1) – (13) are equal, then the difference between whether permanent or limited duration is awarded comes down to the length of the marriage/civil union. Although it is rare, a court can award permanent alimony for a short-term or a mid-duration marriage/civil union, if appropriate.

Reimbursement Alimony
This is awarded where there is a need for one party to pay back support for advanced education that was made in the expectation that it would generate economic benefits later in the marriage/civil union.  An example of this is where one party supports the other while they undertake a professional degree program (law, medicine) and shortly afterwards the parties’ divorce or dissolve their civil union.  In this situation, an award of reimbursement alimony would compensate the party who helped the other to go through medical school for the fact that they would no longer gain the enhanced standard of living later in the relationship that they might have expected in return for their investment.  Reimbursement alimony ends when its purpose is served i.e. when the amount specified has been paid.  It is also possible for the court to award reimbursement alimony with other forms of alimony.

The concept of alimony is one that continues to evolve and reflects changes in society.  We now live in a world where it is common for both parties to work even while bringing up children.  As the baby boomer generation retires, there are likely to be issues raised concerning the termination and/or reduction of permanent alimony awards.  In the meantime, for those contemplating divorce or a civil union dissolution in New Jersey, each case concerning alimony has to be reviewed on the unique facts and situation it presents; an experienced attorney will be able to advise you on this.

Will recognition of gay divorce lead to gay marriage in New Jersey?

Image by bobster1985 via Flickr

That's the question that comes to mind after reading a post on the New Jersey Divorce Law Blog about the decision by Superior Court Judge Mary Jacobson to grant a divorce instead of a dissolution of a civil union to a lesbian couple who were married in Canada.

It is uncertain whether the Attorney General's office will appeal a decision that breaks new ground in New Jersey by recognizing a gay marriage performed elsewhere. 

However, the bigger issue remains the question of whether the term "marriage" should be defined by sexual orientation or refer to the broader concept of the union of two people in a shared economic and personal partnership.  The two-tier concept of marriage and civil unions is seen by many as being "Separate and Not Equal".

NJ Supreme Court decides in favor of marriage or civil union for those couples in committed same-sex relationships

Image via WikipediaBy now most people have heard about the long awaited Supreme Court decision in Lewis v. Harris holding that under the equal protection provisions contained in Article 1, Paragraph 1 of the New Jersey Constitution, same-sex couples must be afforded the same rights and benefits as married heterosexual couples. In a decision that came down on Chief Justice Poritz’s last day in office, the Supreme court gave the legislature 180 days to either modify the state’s marriage statute or enact legislation providing for civil union.

When I first saw that the decision was 4:3, I thought it was a close decision. However, if you read the opinion all seven justices agreed that same-sex couples in a commited relationship should at least be afforded the same rights as married heterosexual couples, while the three Justices in dissent led by Chief Justice Poritz wanted the court to go further and say they had the right under the New Jersey Constitution to "marriage". The majority of the Court felt this was something for the legislature to decide, much to the disappoint of the Chief who wrote the dissent.

Whether the outcome is a civil union statute or change to the marriage statute, the good news from a family and divorce law perspective is that same-sex couples who obtain a dissolution of their relationship, will in future obtain the rights to spousal support, equitable distribution of property, child custody and visitation that they currently don't enjoy.