Throughout my career as a lawyer, I am proud to say that I have assisted many United States Veterans as I guide them through the divorce process here in New Jersey. When dealing with issues such as alimony, I am well aware that a United States Veteran is entitled to numerous benefits for their service to our country. In particular, when it comes time to retire, a veteran is entitled to apply to live in a veteran care facility. While the care facilities are definitely less expensive than other nursing homes or personal caregivers, not all veterans apply to live in them. However, if a veteran chooses to spend more money on a personal caregiver, he or she mostly likely will not be able to terminate alimony obligations. Yet, a New Jersey Family Court will have to conduct a detailed analysis before making such a decision. That was the issue presented in the recent New Jersey Appellate Division case Rizzolo v. Rizzolo. Let’s take a closer look.
In the case the parties married in 1982, separated in 1989, and divorced in 2006. At the time of the marriage, the husband was 58 years old and the wife 38; it was a second marriage for each of them. When the trial judge granted the final judgment for divorce, the husband was 84 years old. The judge felt that even though he was still in great health and capable of working, he had worked as an attorney for 50 years and was entitled to retire.
From 1989 to 2006, the time period in which the parties were not living together, the husband continued to support his wife. She remained unemployed and traveled back and forth between New Jersey and Florida. Since the husband supported his wife for so many years even when separated, the court concluded that the parties had a long-term marriage. Therefore, the judge believed that the wife was entitled to alimony. The judge awarded her $300 per week, which was $100 less than the husband had been voluntarily paying her all along.
Although the court acknowledged that the wife would be receiving less per week, it stated that she was awarded both houses in equitable distribution, which totaled $650,000. Therefore, the court believed that she was given more than enough to maintain her quality of life. Years later when the husband turned 89, his health started to get worse. He suffered from advanced prostate cancer, acute renal failure and osteomyelitis, a bone infection arising from a wound to his knee suffered in WWII. Due to his worsened health, the husband motioned the court to terminate his alimony obligations based on changed circumstances.
The court believed that the husband established a prima facie case of changed circumstances and ordered a plenary hearing to take place. At the hearing, the husband’s son testified that his father had come to live with him after he had been hospitalized and in a rehabilitation center for nearly three months. At this point, the son testified that his father was no longer capable of caring for himself. However, since the son worked full time, he had to hire a full time caregiver for his father, to whom he paid $1000 per week. Yet, to cover the costs of the caregiver, the son testified that he had to stop his father’s alimony payments to his ex-wife, and his mother, the first wife.
After hearing testimony on behalf of both parties, the court denied the husband’s motion. It held that his income was limited to a Veteran’s Administration disability payment and Social Security totaling $5200 per month. Although the court noted that the husband’s health was poor, it found that the care he was receiving was “indicative of a person with less than six months to live.” Therefore, the court believed that the husband’s “economic demise” was permanent and not of his own doing.
Furthermore, the court stated that the husband should have applied to live in a Veteran’s care facility if the cost of a personal caregiver was too high. Since he was a veteran, the court noted that he was entitled to all available benefits through the Veteran’s Administration. The court found that by entering a VA facility “his monthly income would be used to help defray the cost of the facility, and there would be no additional cost to him to provide his needed care that currently was being provided by his son and care giver. The outstanding court orders for alimony to his two ex-wives would remain in effect. Thus, the husband would receive the care that he needed, and the wife would continue to receive her $300 weekly alimony. By failing to seek his VA benefits the husband was essentially having his ex-wives bear the cost of his care to his benefit and their detriment.” The husband appealed.
On appeal, the husband argued that there was no evidence presented regarding:
(1)whether there was a bed available at a Veteran’s care facility
(2)whether the quality of care at a Veteran’s care facility would be comparable to the level of care he was receiving living with his son
(3)whether his disability payments would be affected if he were admitted to a Veteran’s care facility
The New Jersey Appellate Division agreed with the husband and reversed and remanded the decision. The court held that no evidence was presented regarding extremely pivotal issues. Furthermore, the court noted that although on remand it may conclude that it is equitable to require the husband to enter a VA facility against his wishes in order to use his limited income to keep paying alimony, it may only do so after considering competent and comprehensive evidence.
Ultimately, a New Jersey Family Court will always try to preserve the equities and fairness of both parties in a case. However, it can only do so once enough evidence is reviewed and a qualitative analysis of both parties’ circumstances is taken. For more questions on this red-hot topic, please do not hesitate to contact my family law and divorce law firm today.