Before NJ 2A:34-23 was amended in 2014, permanent alimony often meant alimony until somebody died or the recipient spouse remarried.
Retirement is a change that warrants a review of alimony, but not necessarily modification. The outcome was often that people, even in retirement, continued to pay alimony literally until they died.
The alimony law was amended in 2014 to eliminate permanent alimony.
The alimony law also included a presumption that when a payor reached good faith retirement age, which is full eligibility for social security, typically age 67, there was a presumption that alimony would end.
The amended statute treated cases differently if they were decided / settled pre 2014 amendment. If you had an agreement or a judgment of divorce that was created and signed by the couple before the 2014 amendment, you now have a different standard for analysis of retirement. You don’t necessarily get the same presumption as you would if the agreement was created after the amendment.
In the Amzler v. Amzler case, if you have a retirement request based on a marital settlement agreement or judgment of divorce entered before the statutory amendment, there was a separate and specific part of the amended statute that applies.
The important part about the Amzler case is that it gives trial courts guidance on how to apply the statute to review and determine whether or not alimony ends based on a payor’s retirement.
The details of the Amzler case
In Amzler v. Amzler, the husband had a job for many years as a PSE&G lineman, which is a fairly physical job. He was in his late 50s and was having some problems with arthritis.
He filed an application with the court to terminate his alimony obligation because he had retired and started collecting his full pension. But his reason for retiring under age 67 was based on arthritis and other health conditions. There was also testimony that most people in his position retired in their late 50s and didn’t continue to work through their 60s because of the physical nature of the job.
The higher court sent the Amsler case back to the trial court to reconsider whether Mr. Amsler is entitled to pay reduced alimony.
Being in his late 50s, having done a very physical job and already having shared a portion of his pension with his wife at the time of divorce, the higher court ultimately held that we have to look at whether the payor is capable of doing other kinds of work to supplement his pension and, possibly, to continue to pay alimony.
Amzler was a permanent alimony obligation, a form of alimony which was eliminated by the 2014 amendments.
The question for Mr. Amzler and people in the same positions as the Amzlers is whether to require the payor to pay until 67 and beyond, or does he get to retire and stop paying alimony all together. While the answer will vary based on the facts of each case, at least Amzler gave us a little more guidance.
The procedural details of the Amzler case
The lower court terminated Amzler’s alimony obligation and the appellate division reversed that termination and sent it back to the trial court for further analysis on whether or not Mr. Amzler could work part-time or had another way to pay some or all of his alimony obligation.
The trial court now has to determine whether or not Mr. Amzler’s alimony obligation is terminated, reduced, or whether he has to pay it in full based on his ability to earn income from other sources.
Although he had an arthritic condition that prevented him from continuing in his physical job , maybe he could have sought employment with his employer in a different capacity. He also may be able to obtain other employment to enable him to earn something to meet his all or some of his alimony obligations to his former spouse.
If the determination is made that Mr. Amzler should not have retired “early,” because less than 60 is considered early, they would impute income to him based on his ability to earn. It could very well be that there is no change in alimony as a result of retirement.
In a pandemic, what if there are no employment opportunities for someone in Mr. Amzler’s situation?
In New Jersey, income is not necessarily based on what someone is earning now but based on what that person is capable of earning, and that’s where expert opinions would come in about whether or not this person has the ability to earn.
New Jersey courts impute income based on either an earnings history, the educational background, or the New Jersey Department of Labor and Workforce Development statistics, which show what a person in a particular profession or field should be earning.
Despite the enormous loss of jobs in today’s economy, the unfortunate reality is that the courts don’t take into consideration whether the payor sitting in front of the can actually obtain comparable employment. It is very frustrating for people who elected to retire from physical jobs (for example, most people would prefer not to have a 62 year old correction officer transporting a 25 year old murder suspect) or were downsized from corporate jobs after many years of service, to prove that they cannot earn the same amount of money elsewhere or that they accepted lower paying employment in good faith.
The statute was a push in the direction of a more modern frame of thought. Women sometimes make more money than men, but many of the older New Jersey cases were decided at a time when there was a rigid gender income disparity. That is not intended to discount current gender income disparities which still exist, but times are changing. A mindset that may have been viewed as progressive in the 60s and 70s seems dated today.
When the alimony statute was amended, it included some new provisions. One new provision requires that a court consider both parties’ rights to be maintained in their accustomed lifestyle. That this balanced approach is “new” should be surprising.
Alimony should be fair to both parties. For example, if a large company downsizes and releases someone in their late 50s or early 60s who was making a good salary, even if they could get another job, it is not likely they will replicate that level of income in the twilight of their career. The person who was paying alimony shouldn’t have to liquidate every penny they have to pay alimony that they can’t afford to pay anymore.
The legislative intent was to remediate some of those problems where people were acting in good faith and not purposefully depressing their income to avoid paying support.
What if I simply cannot pay?
You may be required to deplete at least some of your assets to make those payments until you get to the point where you can either get another job or persuade a court that you’ve had a permanent change in your circumstances. You will also need to conduct a well-documented job search. That applications are submitted online is no excuse for not providing documentation.
In New Jersey, unemployment and job loss, at least for a while, is considered only a temporary setback that doesn’t qualify for modification of spousal support.
If you have no assets and are failing to meet your support obligations, the court may seek to suspend the passport or driver’s license of the payor or place liens against the payor so that when money does come into their bank account, the other party may be able to get it. The court would try to enforce the obligations as best as they could until another order is in place.
There is a criminal cause of action in New Jersey called criminal willful non-support, but prosecutions are rare.
Another new section of the amended law permits for temporary relief in the event of a changed circumstance or financial hardship. NJSA 2A:34-23(m). There have been no instances in which the courts have awarded temporary relief under this subsection of the statute in any published opinion. This section seems to apply perfectly to payors who have lost employment in circumstances such as the COVID 19 crisis. The economic downturn precipitated by the COVID 19 crisis may be the event that requires the courts to consider changed circumstances in a new and balanced way. The amended law provides us all with the mechanism to achieve fair and balanced outcomes to the crisis many of our residents are facing.
