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

How Is Alimony Determined By A New Jersey Court?

Most divorce cases in this state settle.  As a member long standing member of the Middlesex County, New Jersey, Assignment Judge’s Family Lawyers Committee, I know this for a fact.  However, when alimony is at issue, a trial becomes much more likely.  If so, your attorney must address the factors set in New Jersey Statute 2A:34-23(b) when making a determination as to whether alimony should be awarded, and if so, how much.  The most important purpose of New Jersey Statute 2A:34-23(b), is to give family law judges broad discretion and authority to order remedies on a case by case basis, which will achieve justice and satisfy the needs of the litigants. To accomplish this a proper alimony award assists the supported spouse to achieve a lifestyle reasonably comparable to the one enjoyed while living with the supporting spouse during the course of the marriage. A family law judge awarding alimony must delicately consider all evidence to ensure the alimony award is fit, reasonable and just to both parties.

In Wicker v. Wicker, James Wicker appealed the support obligations in the amended final judgment of divorce dated December 17, 2013. He contended that the trial court did not properly determine income and monthly expenses for purposes calculating child support and alimony payable to his ex-wife Tara Wicker. James argued that the trial court should have considered his rental expenses and the money it costs him to travel from his townhouse in Virginia to visit his child in New Jersey. In addition, James alleged that the trial court wrongly denied his expert’s opinion that stated income should be imputed to Tara. Conversely, Tara argued that the trial judge’s calculation of alimony and child support, and consideration of the expert’s report was correct. The New Jersey Appellate Division reviewed the case and affirmed the trial court’s final judgment of divorce.

            James and Tara married on December 28, 1996, and had three daughters together. Two of these children had serious health issues. The couple filed for divorce on in 2012. Tara was fifty years old at the time of trial and James was forty-eight. James lived in Virginia as of September 2013. He visited the family home in New Jersey on alternative weekends to exercise his parenting time.             

Before the trial in September 2013, Tara and James entered in to a partial property settlement agreement. This agreement covered various disputed issues, but left the issues of alimony and child support to the courts. After careful consideration the court issued a thirty-seven page written decision on November 14, 2013. The judge accounted for a portion of James’ transportation and commuting expenses in determining his budget. Furthermore, the court’s child support guidelines worksheet deducted $ 40 from James’ net child support obligation based on an adjustment for parenting time expenses. The judge also credited him with a temporary monthly $ 250 parenting expense for costs associated with his commute, effective until the sale of the marital home. On appeal James argued that the trial court did not properly consider his parenting expenses, and inappropriately rejected his expert’s opinion.

The New Jersey Appellate Division started its opinion by stating that they give Family Part decisions deference based on its expertise in matrimonial matters. The New Jersey Appellate Division will not change a Family Part court’s decision as long as it is supported by substantial credible evidence, and consistent with applicable law. Even though the New Jersey Appellate Division owes no special deference to a judge’s legal conclusions, they will not disturb the factual findings and legal conclusions of a trial court unless they are so clearly unsupported by or inconsistent with reasonably credible evidence that they offend justice or when the trial court has profoundly abused its discretion.

James’ argued that the amended final judgment of divorce unfairly compelled him to work in Washington without considering the costs involved in maintaining a dual residence. He urged the court to allow him to either “move to New Jersey or alternatively,” to deduct the housing expenses and travel expenses associated with parenting time. The New Jersey Appellate Division found this contention to be without merit.

The appellate panel stated that alimony is about support and standard of living. It involves the quality of economic life that one spouse is entitled to, which becomes the obligation of the other spouse. New Jersey Statute 2A:34-23(b) sets the factors involved in determination whether alimony should be awarded. When awarding alimony, New Jersey courts will consider, but not limited to, the following factors: the real need and ability to pay; the duration of the marriage; the standard of living enjoyed during the marriage; each party’s earning capacity; each party’s parental responsibilities for the children; and any other factor the court may deem important. The most important purpose of New Jersey Statute 2A:34-23(b), is to give family law judges broad discretion and authority to order remedies on a case by case basis, which will achieve justice and satisfy the needs of the litigants. To accomplish this a proper alimony award assists the supported spouse to achieve a lifestyle reasonably comparable to the one enjoyed while living with the supporting spouse during the course of the marriage. A family law judge awarding alimony must delicately consider all evidence to ensure the alimony award is fit, reasonable and just to both parties.

After review, the New Jersey Appellate Division concluded that the trial judge appropriately considered the necessary factors in determining an alimony award, including proved expenses. The judge made specific findings on the evidence regarding the statutory factors, and those factors were supported by the record. The trial court’s decision displays the judge’s proper consideration of the statutory factors in light of the sufficient credible evidence present in the factual record. Contrary to James’ contentions, the New Jersey Appellate Division found that the trial court did give due consideration to the expenses James’ proved to incur due to parenting time expenses and shelter costs. The factual record demonstrated that the court, in contemplating James’ budget, considered his rental cost and expenses incurred to effectuate parenting time. The judge specifically addressed his “transportation and commuting expenses for parenting time,” which incorporated the monthly gas expense of $ 105 and tolls in the amount of $ 73 per month. Even though the judge questioned the rental cost, he did not prevent James from remaining in his two to three bedroom Virginia townhome. As noted by Tara, his Virginia home is located in a very expensive suburban area, which suggest that his living arrangements are close to or very near the marital standard of living, which the judge noted was distinctly “upper middle class.”

The New Jersey Appellate Division also stated that the trial judge’s rejection of James’ alleged $ 900 in additional parenting expenses was appropriate. James failed to justify those costs and his “confusing and inconsistent” supporting proofs. Because the judge was suspicious about other costs James claimed, the court’s decision to deduct $ 1,000 from his monthly budget, setting it at $ 7,500 was reasonable and supported by evidence in the factual record. The New Jersey Appellate Division found the rest of James’ arguments were to be without merit. The appellate panel stated that the trial judge properly exercised his discretion in deciding James’ income in consideration of the alimony award by using a three-prong average of his earnings. The judge never forced James to remain in the Washington area, nor did James indicate that he had any job offers in the New Jersey area at the time of trial. If that were to occur, he could file a motion to modify the order due to changed circumstances, if warranted. The New Jersey Appellate Division concluded that the judge’s determination of James’ income, monthly expenses, and alimony, were fully supported by credible evidence established by the factual record and entitled to deference. The order was affirmed in its entirety.

If you have any questions regarding alimony, please never hesitate to contact my office.