Does A Victim Of Domestic Violence Have An Obligation To Pay Alimony?
Following please find an inner office “Legal Memorandum” prepared regarding an issue that just recently came across the desk of one of the attorneys at our law firm. As I felt it would be interesting for the public to see what happens behind the scenes as a retraining order attorney at a family law firm, please enjoy the following:
Question Presented: Whether a victim of domestic violence could be ordered to pay alimony, or temporary support, to his or her abuser upon or after a Final Restraining Order being issued.
Short Answer: There is not much relevant New Jersey case law on this question. I found one case, Maksuta v. Higson, dealing with temporary support that seemed to suggest that one must be a victim of domestic violence to receive support for housing and maintenance. 242 N.J. Super 452 (1990). However, it is important to note that in Maksuta v. Higson, the couple was merely common-law married, and according to the judge not entitled to alimony.
I did find another case, Calbi v. Calbi, were domestic violence towards a supporting spouse was considered special circumstances that allowed for the termination of his alimony obligation even though his property settlement agreement stated that spousal support would not be subject to termination or modification. 396 N.J. Super 532, 541 (2007). It is important to note that a domestic violence complaint was never filed in this case, nor was a final restraining order ever entered. Id. at 535. The New Jersey Appellate Division terminated the father’s alimony obligation for the time being, and ordered a plenary hearing to decide if his son’s death resulted in an economic change of circumstances such that his ability to pay alimony was prevented or hindered. Id. at 543.
Perhaps more on point, I found a couple proposed bills, Assembly Bill 1193 and Senate Bill 525, that seek to prohibit alimony awards to abusers convicted of domestic violence from the victim. While there is a lack of authoritative case law on this question it would seem that if there is a pending bill to prohibit alimony awards in this circumstance, then as of right now these sort of awards must be legitimate. I discuss these bills in further detail at the end of this memo.
Discussion: N.J.S.A. 2C:25-13(b)(6), provides for “An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. Compensatory losses shall include, but not be limited to, loss of earnings or support . . .”(emphasis added). While this statute clearly provides for at least temporary support for a victim, it does not state whether a perpetrator would be entitled to temporary support.
In Maksuta v. Higson, common-law husband and plaintiff, John Maksuta, appealed an order of the Superior Court of New Jersey, Family Part of Bergen County, that granted monetary awards to his common-law wife and defendant, Agne Higson, for her separate housing and maintenance after she was ordered to remove herself from their mutual residence. Maksuta v. Higson, 242 N.J. Super 452 (1990). John filed a domestic violence complaint against Agnes after twenty-eight years of cohabitation. Id. at 453. Even though he was the victim who instituted the claim, a judgment entered on August 7, 1989, required John to pay Agnes $ 1,000 a month for her separate housing and maintenance. Id. While the New Jersey Appellate Division affirmed the monetary award for temporary support, it is important to note that in this case, the court found that both parties had committed acts of domestic violence against each other. Id. at 454. Here the New Jersey Appellate Division stated that “As there is support in the record for the finding that defendant, as well as plaintiff, was a "victim", we cannot upset the order requiring plaintiff to support the defendant. . .” While the appellate panel did not explicitly say so, it would seem from the language that if Agnes was not also a “victim of domestic violence she would not have been awarded with monetary relief.
In Calbi, the husband had been paying alimony to his ex-wife who was convicted of beating, and as a result, killing their son. Id. at 536. While the trial court considered this a “egregious act” that warranted a termination of the alimony obligation on the principle of equity. The New Jersey Appellate Division, however, stated that while the mother’s crime was horrendous, they did not read the alimony statute to specify that a former spouse's criminal act in taking the life of one of the parties' children per se disqualifies the ex-spouse from receiving alimony. Id. 543. Instead they held that deciding whether non-economic fault constitutes “egregious circumstances” is decided on a case-by-case basis, and in the instant case, the mother lacked the necessary premeditation and intent to kill to satisfy the narrow Mani standard for “egregious circumstances.” Id. With that said, the New Jersey Appellate Division did terminate the father’s alimony obligation and ordered a plenary hearing to decide if the son’s death resulted in an economic change of circumstances such that his ability to pay alimony was prevented or hindered. Id.
There is a lack of relevant case law of this case, but the Maksuta v. Higson holding is interesting because while it implies that the victim was only required to pay temporary support because the perpetrator or defendant was also a victim, bills proposed in the New Jersey Legislature imply that for actual alimony obligations, there is no such requirement that if there is a final restraining order, the receipt of the spousal support must be the victim and not the perpetrator. 2016 Bill Text A.B. 1193. Introduced on January 27, 2016, Assembly Bill 1193 is an Act relating to alimony and would amend N.J.S.A 2A:34-23. It’s stated purpose is to prohibit alimony awards to people who have been convicted of a crime or offense involving domestic violence, by the victim of that crime. Furthermore, this amendment would recognize a subsequent act of domestic violence committed against the supporting spouse, as “change of circumstance” that would warrant a termination of the alimony obligation. Id.
Logically, if there a pending bill to prohibit the very question asked, whether victim of domestic violence could be ordered to pay alimony, or temporary support, to his or her abuser upon or after a Final Restraining Order has been issued, then it would seem that until this bill is passes, a victim of domestic violence could very well be ordered to pay alimony or temporary support to a spouse that perpetrated the violence against them. This bill is sponsored by only eight assemblymen and women, and according to Lexis it has an incredibly poor chance of moving forward. 2016 Bill Text A.B. 1193. As of today, the bill has only been introduced and is pending technical review by legislative counsel. Id. There is also a Senate Bill introduced by State Senators Beck and Greenstein on January 12, 2016, that would amend N.J.S.A 2A:34-23 in the same way as the assembly bill, but it at the same legislative stage and has a low change of actually passing. 2016 Bill Text NJ S.B. 525.
My law firm is prepared to assist you if you find yourself in a domestic violence circumstance.