New Jersey § 2a:34-23

§ 2a:34-23.

Alimony, maintenance. Pending any matrimonial action or action for dissolution of a civil union brought

in this State or elsewhere, or after judgment of divorce or dissolution or maintenance,

whether obtained in this State or elsewhere, the court may make such order as to the

alimony or maintenance of the parties, and also as to the care, custody, education

and maintenance of the children, or any of them, as the circumstances of the parties

and the nature of the case shall render fit, reasonable and just, and require reasonable

security for the due observance of such orders, including, but not limited to, the

creation of trusts or other security devices, to assure payment of reasonably foreseeable

medical and educational expenses. Upon neglect or refusal to give such reasonable security, as shall be required,

or upon default in complying with any such order, the court may award and issue process

for the immediate sequestration of the personal estate, and the rents and profits

of the real estate of the party so charged, and appoint a receiver thereof, and cause

such personal estate and the rents and profits of such real estate, or so much thereof

as shall be necessary, to be applied toward such alimony and maintenance as to the

said court shall from time to time seem reasonable and just; or the performance of

the said orders may be enforced by other ways according to the practice of the court. Orders so made may be revised and altered by the court from time to time as circumstances

may require. The court may order one party to pay a retainer on behalf of the other for expert

and legal services when the respective financial circumstances of the parties make

the award reasonable and just. In considering an application, the court shall review the financial capacity of

each party to conduct the litigation and the criteria for award of counsel fees that

are then pertinent as set forth by court rule. Whenever any other application is made to a court which includes an application

for pendente lite or final award of counsel fees, the court shall determine the appropriate

award for counsel fees, if any, at the same time that a decision is rendered on the

other issue then before the court and shall consider the factors set forth in the

court rule on counsel fees, the financial circumstances of the parties, and the good

or bad faith of either party. The court may not order a retainer or counsel fee of a party convicted of an attempt

or conspiracy to murder the other party to be paid by the party who was the intended

victim of the attempt or conspiracy. a. In determining the amount to be paid by a parent for support of the child and the

period during which the duty of support is owed, the court in those cases not governed

by court rule shall consider, but not be limited to, the following factors: (1) Needs of the child; (2) Standard of living and economic circumstances of each parent; (3) All sources of income and assets of each parent; (4) Earning ability of each parent, including educational background, training, employment

skills, work experience, custodial responsibility for children including the cost

of providing child care and the length of time and cost of each parent to obtain training

or experience for appropriate employment; (5) Need and capacity of the child for education, including higher education; (6) Age and health of the child and each parent; (7) Income, assets and earning ability of the child; (8) Responsibility of the parents for the court-ordered support of others; (9) Reasonable debts and liabilities of each child and parent; and (10) Any other factors the court may deem relevant. The obligation to pay support for a child who has not been emancipated by the court

shall not terminate solely on the basis of the child's age if the child suffers from

a severe mental or physical incapacity that causes the child to be financially dependent

on a parent. The obligation to pay support for that child shall continue until the court finds

that the child is relieved of the incapacity or is no longer financially dependent

on the parent. However, in assessing the financial obligation of the parent, the court shall consider,

in addition to the factors enumerated in this section, the child's eligibility for

public benefits and services for people with disabilities and may make such orders,

including an order involving the creation of a trust, as are necessary to promote

the well-being of the child. As used in this section “severe mental or physical incapacity” shall not include a

child's abuse of, or addiction to, alcohol or controlled substances. b. In all actions brought for divorce, dissolution of a civil union, divorce from

bed and board, legal separation from a partner in a civil union couple, or nullity,

the court may award one or more of the following types of alimony: open durational

alimony; rehabilitative alimony; limited duration alimony or reimbursement alimony

to either party. In so doing the court shall consider, but not be limited to, the following factors: (1) The actual need and ability of the parties to pay; (2) The duration of the marriage or civil union; (3) The age, physical and emotional health of the parties; (4) The standard of living established in the marriage or civil union and the likelihood

that each party can maintain a reasonably comparable standard of living, with neither

party having a greater entitlement to that standard of living than the other; (5) The earning capacities, educational levels, vocational skills, and employability

of the parties; (6) The length of absence from the job market of the party seeking maintenance; (7) The parental responsibilities for the children; (8) The time and expense necessary to acquire sufficient education or training to

enable the party seeking maintenance to find appropriate employment, the availability

of the training and employment, and the opportunity for future acquisitions of capital

assets and income; (9) The history of the financial or non-financial contributions to the marriage or

civil union by each party including contributions to the care and education of the

children and interruption of personal careers or educational opportunities; (10) The equitable distribution of property ordered and any payouts on equitable distribution,

directly or indirectly, out of current income, to the extent this consideration is

reasonable, just and fair; (11) The income available to either party through investment of any assets held by

that party; (12) The tax treatment and consequences to both parties of any alimony award, including

the designation of all or a portion of the payment as a non-taxable payment; (13) The nature, amount, and length of pendente lite support paid, if any; and (14) Any other factors which the court may deem relevant. In each case where the court is asked to make an award of alimony, the court shall

consider and assess evidence with respect to all relevant statutory factors. If the court determines that certain factors are more or less relevant than others,

the court shall make specific written findings of fact and conclusions of law on the

reasons why the court reached that conclusion. No factor shall be elevated in importance over any other factor unless the court

finds otherwise, in which case the court shall make specific written findings of fact

and conclusions of law in that regard. When a share of a retirement benefit is treated as an asset for purposes of equitable

distribution, the court shall not consider income generated thereafter by that share

for purposes of determining alimony. c. In any case in which there is a request for an award of alimony, the court shall

consider and make specific findings on the evidence about all of the statutory factors

set forth in subsection b. of this section. For any marriage or civil union less than 20 years in duration, the total duration

of alimony shall not, except in exceptional circumstances, exceed the length of the

marriage or civil union. Determination of the length and amount of alimony shall be made by the court pursuant

to consideration of all of the statutory factors set forth in subsection b. of this

section. In addition to those factors, the court shall also consider the practical impact

of the parties' need for separate residences and the attendant increase in living

expenses on the ability of both parties to maintain a standard of living reasonably

comparable to the standard of living established in the marriage or civil union, to

which both parties are entitled, with neither party having a greater entitlement thereto. Exceptional circumstances which may require an adjustment to the duration of alimony

include: (1) The ages of the parties at the time of the marriage or civil union and at the

time of the alimony award; (2) The degree and duration of the dependency of one party on the other party during

the marriage or civil union; (3) Whether a spouse or partner has a chronic illness or unusual health circumstance; (4) Whether a spouse or partner has given up a career or a career opportunity or otherwise

supported the career of the other spouse or partner; (5) Whether a spouse or partner has received a disproportionate share of equitable

distribution; (6) The impact of the marriage or civil union on either party's ability to become

self-supporting, including but not limited to either party's responsibility as primary

caretaker of a child; (7) Tax considerations of either party; (8) Any other factors or circumstances that the court deems equitable, relevant and

material. An award of alimony for a limited duration may be modified based either upon changed

circumstances, or upon the nonoccurrence of circumstances that the court found would

occur at the time of the award. The court may modify the amount of such an award, but shall not modify the length

of the term except in unusual circumstances. In determining the length of the term, the court shall consider the length of time

it would reasonably take for the recipient to improve his or her earning capacity

to a level where limited duration alimony is no longer appropriate. d. Rehabilitative alimony shall be awarded based upon a plan in which the payee shows

the scope of rehabilitation, the steps to be taken, and the time frame, including

a period of employment during which rehabilitation will occur. An award of rehabilitative alimony may be modified based either upon changed circumstances,

or upon the nonoccurrence of circumstances that the court found would occur at the

time of the rehabilitative award. This section is not intended to preclude a court from modifying alimony awards based

upon the law. e. Reimbursement alimony may be awarded under circumstances in which one party supported

the other through an advanced education, anticipating participation in the fruits

of the earning capacity generated by that education. An award of reimbursement alimony shall not be modified for any reason. f. Except as provided in subsection i., nothing in this section shall be construed

to limit the court's authority to award open durational alimony, limited duration

alimony, rehabilitative alimony or reimbursement alimony, separately or in any combination,

as warranted by the circumstances of the parties and the nature of the case. g. In all actions for divorce or dissolution other than those where judgment is granted

solely on the ground of separation the court may consider also the proofs made in

establishing such ground in determining an amount of alimony or maintenance that is

fit, reasonable and just. In all actions for divorce, dissolution of civil union, divorce from bed and board,

or legal separation from a partner in a civil union couple where judgment is granted

on the ground of institutionalization for mental illness the court may consider the

possible burden upon the taxpayers of the State as well as the ability of the party

to pay in determining an amount of maintenance to be awarded. h. (1) Except as provided in this subsection, in all actions where a judgment of divorce,

dissolution of civil union, or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to

alimony and maintenance, to effectuate an equitable distribution of the property,

both real and personal, which was legally and beneficially acquired by them or either

of them during the marriage or civil union. However, all such property, real, personal or otherwise, legally or beneficially

acquired during the marriage or civil union by either party by way of gift, devise,

or intestate succession shall not be subject to equitable distribution, except that

interspousal gifts or gifts between partners in a civil union couple shall be subject

to equitable distribution. (2) If a complaint not dismissed pursuant to R.4:6-2 of the Rules of Court has been

filed for an action under paragraph (1) of this section, and (a) either party to the

litigation dies prior to the entry of the final judgment, or (b) if the parties had

and remained entered into a validly executed equitable distribution cut-off agreement,

termination agreement, or marital settlement agreement where the underlying subject

matter of the agreement is divorce, dissolution of civil union, termination of domestic

partnership, or divorce from bed and board at the time of death of the decedent occurring

prior to the entry of the final judgment, the court's authority to effectuate an equitable

distribution of the property shall not abate. Pursuant to subparagraph (a)(3) of R.4:3-1 of the Rules of Court, all such matters

shall be filed and heard in the Family Part of the Chancery Division of the Superior

Court. (3) The court may not make an award concerning the equitable distribution of property

on behalf of a party barred from inheriting under subsection a. of section 58 of P.L.2004, c. 132 ( C.3B:7-1.1 ) or on behalf of a party responsible for an attempt or conspiracy to murder the other party. i. No person convicted of Murder, N.J.S.2C:11-3 ; Manslaughter, N.J.S.2C:11-4 ; Criminal Homicide, N.J.S.2C:11-2 ; Aggravated Assault, under subsection b. of N.J.S.2C:12-1 ; or a substantially similar offense under the laws of another jurisdiction, may

receive alimony if: (1) the crime results in death or serious bodily injury, as defined

in subsection b. of N.J.S.2C:11-1 , to a family member of a divorcing party; and (2) the crime was committed after

the marriage or civil union. A person convicted of an attempt or conspiracy to commit murder may not receive

alimony from the person who was the intended victim of the attempt or conspiracy. Nothing in this subsection shall be construed to limit the authority of the court

to deny alimony for other bad acts. As used in this subsection: “ Family member ” means a spouse, partner in a civil union, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild,

father-in-law, mother-in-law, son-in-law, daughter-in-law, stepparent, stepchild,

stepbrother, stepsister, half-brother, or half-sister, whether the individual is related

by blood, marriage or civil union, or adoption. j. Alimony may be modified or terminated upon the prospective or actual retirement

of the obligor. (1) There shall be a rebuttable presumption that alimony shall terminate upon the

obligor spouse or partner attaining full retirement age, except that any arrearages

that have accrued prior to the termination date shall not be vacated or annulled. The court may set a different alimony termination date for good cause shown based

on specific written findings of fact and conclusions of law. The rebuttable presumption may be overcome if, upon consideration of the following

factors and for good cause shown, the court determines that alimony should continue: (a) The ages of the parties at the time of the application for retirement; (b) The ages of the parties at the time of the marriage or civil union and their ages

at the time of entry of the alimony award; (c) The degree and duration of the economic dependency of the recipient upon the payor

during the marriage or civil union; (d) Whether the recipient has foregone or relinquished or otherwise sacrificed claims,

rights or property in exchange for a more substantial or longer alimony award; (e) The duration or amount of alimony already paid; (f) The health of the parties at the time of the retirement application; (g) Assets of the parties at the time of the retirement application; (h) Whether the recipient has reached full retirement age as defined in this section; (i) Sources of income, both earned and unearned, of the parties; (j) The ability of the recipient to have saved adequately for retirement; and (k) Any other factors that the court may deem relevant. If the court determines, for good cause shown based on specific written findings of

fact and conclusions of law, that the presumption has been overcome, then the court

shall apply the alimony factors as set forth in subsection b. of this section to the

parties' current circumstances in order to determine whether modification or termination

of alimony is appropriate. If the obligor intends to retire but has not yet retired, the court shall establish

the conditions under which the modification or termination of alimony will be effective. (2) Where the obligor seeks to retire prior to attaining the full retirement age as

defined in this section, the obligor shall have the burden of demonstrating by a preponderance

of the evidence that the prospective or actual retirement is reasonable and made in

good faith. Both the obligor's application to the court for modification or termination of alimony

and the obligee's response to the application shall be accompanied by current Case

Information Statements or other relevant documents as required by the Rules of Court,

as well as the Case Information Statements or other documents from the date of entry

of the original alimony award and from the date of any subsequent modification. In order to determine whether the obligor has met the burden of demonstrating that

the obligor's prospective or actual retirement is reasonable and made in good faith,

the court shall consider the following factors: (a) The age and health of the parties at the time of the application; (b) The obligor's field of employment and the generally accepted age of retirement

for those in that field; (c) The age when the obligor becomes eligible for retirement at the obligor's place

of employment, including mandatory retirement dates or the dates upon which continued

employment would no longer increase retirement benefits; (d) The obligor's motives in retiring, including any pressures to retire applied by

the obligor's employer or incentive plans offered by the obligor's employer; (e) The reasonable expectations of the parties regarding retirement during the marriage

or civil union and at the time of the divorce or dissolution; (f) The ability of the obligor to maintain support payments following retirement,

including whether the obligor will continue to be employed part-time or work reduced

hours; (g) The obligee's level of financial independence and the financial impact of the

obligor's retirement upon the obligee; and (h) Any other relevant factors affecting the obligor's decision to retire and the

parties' respective financial positions. If the obligor intends to retire but has not yet retired, the court shall establish

the conditions under which the modification or termination of alimony will be effective. (3) When a retirement application is filed in cases in which there is an existing

final alimony order or enforceable written agreement established prior to the effective

date of this act, the obligor's reaching full retirement age as defined in this section

shall be deemed a good faith retirement age. Upon application by the obligor to modify or terminate alimony, both the obligor's

application to the court for modification or termination of alimony and the obligee's

response to the application shall be accompanied by current Case Information Statements

or other relevant documents as required by the Rules of Court, as well as the Case

Information Statements or other documents from the date of entry of the original alimony

award and from the date of any subsequent modification. In making its determination, the court shall consider the ability of the obligee

to have saved adequately for retirement as well as the following factors in order

to determine whether the obligor, by a preponderance of the evidence, has demonstrated

that modification or termination of alimony is appropriate: (a) The age and health of the parties at the time of the application; (b) The obligor's field of employment and the generally accepted age of retirement

for those in that field; (c) The age when the obligor becomes eligible for retirement at the obligor's place

of employment, including mandatory retirement dates or the dates upon which continued

employment would no longer increase retirement benefits; (d) The obligor's motives in retiring, including any pressures to retire applied by

the obligor's employer or incentive plans offered by the obligor's employer; (e) The reasonable expectations of the parties regarding retirement during the marriage

or civil union and at the time of the divorce or dissolution; (f) The ability of the obligor to maintain support payments following retirement,

including whether the obligor will continue to be employed part-time or work reduced

hours; (g) The obligee's level of financial independence and the financial impact of the

obligor's retirement upon the obligee; and (h) Any other relevant factors affecting the parties' respective financial positions. (4) The assets distributed between the parties at the time of the entry of a final

order of divorce or dissolution of a civil union shall not be considered by the court

for purposes of determining the obligor's ability to pay alimony following retirement. k. When a non-self-employed party seeks modification of alimony, the court shall consider

the following factors: (1) The reasons for any loss of income; (2) Under circumstances where there has been a loss of employment, the obligor's documented

efforts to obtain replacement employment or to pursue an alternative occupation; (3) Under circumstances where there has been a loss of employment, whether the obligor

is making a good faith effort to find remunerative employment at any level and in

any field; (4) The income of the obligee; the obligee's circumstances; and the obligee's reasonable

efforts to obtain employment in view of those circumstances and existing opportunities; (5) The impact of the parties' health on their ability to obtain employment; (6) Any severance compensation or award made in connection with any loss of employment; (7) Any changes in the respective financial circumstances of the parties that have

occurred since the date of the order from which modification is sought; (8) The reasons for any change in either party's financial circumstances since the

date of the order from which modification is sought, including, but not limited to,

assessment of the extent to which either party's financial circumstances at the time

of the application are attributable to enhanced earnings or financial benefits received

from any source since the date of the order; (9) Whether a temporary remedy should be fashioned to provide adjustment of the support

award from which modification is sought, and the terms of any such adjustment, pending

continuing employment investigations by the unemployed spouse or partner; and (10) Any other factor the court deems relevant to fairly and equitably decide the

application. Under circumstances where the changed circumstances arise from the loss of employment,

the length of time a party has been involuntarily unemployed or has had an involuntary

reduction in income shall not be the only factor considered by the court when an application

is filed by a non-self-employed party to reduce alimony because of involuntary loss

of employment. The court shall determine the application based upon all of the enumerated factors,

however, no application shall be filed until a party has been unemployed, or has not

been able to return to or attain employment at prior income levels, or both, for a

period of 90 days. The court shall have discretion to make any relief granted retroactive to the date

of the loss of employment or reduction of income. l . When a self-employed party seeks modification of alimony because of an involuntary

reduction in income since the date of the order from which modification is sought,

then that party's application for relief must include an analysis that sets forth

the economic and non-economic benefits the party receives from the business, and which

compares these economic and non-economic benefits to those that were in existence

at the time of the entry of the order. m. When assessing a temporary remedy, the court may temporarily suspend support, or

reduce support on terms; direct that support be paid in some amount from assets pending

further proceedings; direct a periodic review; or enter any other order the court

finds appropriate to assure fairness and equity to both parties. n. Alimony may be suspended or terminated if the payee cohabits with another person. Cohabitation involves a mutually supportive, intimate personal relationship in which

a couple has undertaken duties and privileges that are commonly associated with marriage

or civil union but does not necessarily maintain a single common household. When assessing whether cohabitation is occurring, the court shall consider the following: (1) Intertwined finances such as joint bank accounts and other joint holdings or liabilities; (2) Sharing or joint responsibility for living expenses; (3) Recognition of the relationship in the couple's social and family circle; (4) Living together, the frequency of contact, the duration of the relationship, and

other indicia of a mutually supportive intimate personal relationship; (5) Sharing household chores; (6) Whether the recipient of alimony has received an enforceable promise of support

from another person within the meaning of subsection h. of R.S.25:1-5 ; and (7) All other relevant evidence. In evaluating whether cohabitation is occurring and whether alimony should be suspended

or terminated, the court shall also consider the length of the relationship. A court may not find an absence of cohabitation solely on grounds that the couple

does not live together on a full-time basis. As used in this section: “ Full retirement age ” shall mean the age at which a person is eligible to receive full retirement for

full retirement benefits under section 216 of the federal Social Security Act ( 42 U.S.C. s.416 ).