Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Do I Get Credit For Alimony Paid During My Divorce?

            In New Jersey, no you do not unless your attorney can prove at your divorce trial that you “over paid” during the time that your divorce started until it was finalized (pendente lite).  Here is my attorney blog on that case.  Otherwise, no you may not receive a credit for alimony or support paid during divorce for future alimony payments that are ordered as part of your Final Judgment of Divorce issued by a New Jersey Family Court. 

            In Atwell v. Atwell, Philip B. Atwell appealed a final judgment of divorce entered by the Superior Court of New Jersey, Family Part of Monmouth County, dated May 5, 2015, that awarded his former wife with five years of limited duration alimony. After a comprehensive review, the New Jersey Appellate Division affirmed part of the judgment, and reversed part of it. Philip argued that since his ex-wife, Wendy, received pendente lite support for four years, the award of five years of limited duration alimony from the date of the final judgment of divorce, basically gave her nine years of alimony, exceeding the length of the parties' six-year marriage, which is in violation of New Jersey Statute 2A:34-23(c). Alternatively, Philip argued that the judge abused her discretion by not considering the length and amount of pendente lite support paid. The appellate panel found that Wendy received four years of pendente lite support and is entitled to two more years of limited duration alimony. The judge correctly accounted for those two years and correctly revised the amount to $2,300 per month. The judge also correctly accounted for the portion of defendant's pension that plaintiff did not receive. However, extending limited duration alimony for five years from the date of the final judgment was improper. Limited duration alimony in the amount of $2,300 per month should only have been extended for such additional time from the date of the final judgment of divorce as was necessary to compensate plaintiff for the shortfall. Accordingly, the appellate panel remanded for recalculation of the appropriate term of limited duration alimony from the date of the final judgment of divorce.

            Philip and Wendy Atwell got married on March 4, 2004. While Wendy did not work during the marriage, Philip was a civilian employee within the United States Army, and earned around $ 150,000 every year. Wendy filed a divorce complaint on May 28, 2010, and filed a motion requesting pendente lite support on April 18, 2011. Then on June 2, 2011, the Family Part ordered Philip to pay Wendy $ 2,500 a month in pendente lite support, in addition to paying her life insurance, car insurance, and cell phone bills. Philip retired from his job in the Army on December 30, 2011, and started receiving a pension of $ 81,108 every year. In 2014, this amount increased to  $ 83,640. He filed a motion to reduce his pendente lite support obligation, and on January 3, 2013, the Family Part reduced his temporary support obligation to $ 1,500 a month, and terminated his obligation to pay for Wendy’s car insurance and cell phone bill. The final hearing for divorce was prolonged and delayed numerous times, mainly because Wendy could not attend due to medical reasons.

            During that prolonged period, in 2013, Philip worked as a tax preparer and earned $ 4,350 in addition to his full pension. In August of 2013, he got a new job in which he earned $ 120,000 a year. However for some reason his pendente lite support obligation was still reduced to $ 1,250 a month in November 2013.

            The divorce trial concluded on July 21, 2014. The judge awarded Wendy, fifty percent of one-fifth of Philip’s pension, as per New Jersey Statute 2A:34-23.1, which amounted to $ 697 a month. The judge found that Philip’s income in 2014 was $ 203,800 including his pension. While the judge did not consider the pension in calculating alimony, because Philip received his entire pension during the course of the litigation, the judge did consider it for reviewing the pendente lite support obligation, as per Mallamo v. Mallamo.

            The Family Part judge also found that Wendy had around $ 40,000 in different bank accounts, when she filed for divorce in 2010, in addition to income from workers’ compensation payments, social security disability payments, and pendente lite support. Then the judge considered the fourteen factors related to calculating alimony, according to New Jersey Statute 2A:34-23(b), which include the actual need and ability of the parties to pay, the duration of the marriage, the age and health of the parties, the standard of living during the marriage, the earning capacity and educational level of the parties, and the amount, and length of pendente lite support paid.

            Next the judge considered New Jersey Statute 2A:34-23(c), which states that for any marriage that lasted less than twenty years, the alimony will not exceed the length of the marriage. Even though Philip had paid pendente lite support for four years, the judge found that he received his entire pension at that time, including the share that Wendy was entitled to as per the equitable distribution. The judge further found that since August 2013, Philip had been earning a $ 120,000 a year salary, but was only paying $ 1,250 a month in pendente lite support. consideration of all these factors, the judge then ordered Philip to pay limited duration alimony for the next five years.

On appeal, Philip did not challenge the Family Part’s findings, except for the five-year term of the limited duration alimony. He argued that pendente lite should be considered as alimony, so because he had already paid four years of pendente lite support, the five year term of limited duration alimony would actually result in Wendy receiving nine years of alimony, which would exceed the six years the parties were married, in violation of New Jersey Statute 2A:34-23(c). Philip also argued that the Family Part judge abused her discretion, because she did not consider the amount and length of the pendente lite support that he already paid, and that the exclusion of the pendente lite support in calculating the length of the limited duration alimony would be against public policy.

When it comes to findings of alimony, the New Jersey Appellate Division gives deference to a Family Part judge, as long as the findings are supported by credible evidence in the record. In order to vacate a Family Part judge’s findings of alimony, the appellate panel must conclude that the Family Part either clearly abused its discretion, did not consider all the applicable legal principles, or determine that the findings were mistaken or that they could not have reasonably been reached based on the evidence on the record.

The appellate panel found that Wendy received four years of pendente lite support and is entitled to two more years of limited duration alimony. The judge correctly accounted for those two years and correctly revised the amount to $2,300 per month. The judge also correctly accounted for the portion of defendant's pension that plaintiff did not receive. However, extending limited duration alimony for five years from the date of the final judgment was improper. Wendy was entitled to limited duration alimony for six years at $2,300 per month, or $165,600. She received $2,500 per month for 19 months, or $47,500; she received $1,500 per month for 12 months, or $18,000; she received $1,250 per month for 18 months, or $22,500; and she will receive $2,300 month for 23 months, or $52,900. Thus, Wendy will receive $140,900, leaving a shortfall of $24,700. Also, She was entitled to receive $19,131.20 from defendant's pension. That leaves a total shortfall of $43,831.20. Limited duration alimony in the amount of $2,300 per month should only have been extended for such additional time from the date of the final judgment of divorce as was necessary to compensate plaintiff for the shortfall. Accordingly, the appellate panel remanded for recalculation of the appropriate term of limited duration alimony from the date of the final judgment of divorce.

Our divorce law firm is here for you and any alimony questions that you may have.