July 18, 2011
New York recently became one of the few states to adopt a formula for pendente lite alimony awards. That is, for alimony to be paid while the divorce is pending in court. According to a recent New York Times article entitled “Ending the Alimony Guessing Game”, the IRS confirms that former spouses pay about $9 billion each year in alimony. As anyone who has appeared in family court knows, the awards vary dramatically from county to county and judge to judge. Should NJ adopt alimony guidelines to make the awards more uniform?
As stated in a prior blog, NJ courts apply a list of factors to determine what, if any, alimony the higher earning spouse should pay. How those factors are applied depends on who is doing the calculation. The above-mentioned NY Times article noted that awards are so vastly different that, when asked how much alimony a lifelong homemaker married to a doctor deserved, judges in an Ohio survey estimated as little as $5,000 per year and as much as $175,000.
The unpredictability of alimony awards makes negotiation difficult. The NY Times writer asserts that New York’s law minimizes the cost of litigation by establishing a mathematical formula to calculate temporary alimony. The formula may be adjusted by each individual judge under special circumstances. The formula subtracts 20% of the lower-earning spouse’s income from 30% of the higher earning spouse’s income — so long as the lower earner doesn’t wind up with more than 40% of the combined income. Under this formula, if the incomes were $150,000 and $50,000, the alimony award would be $35,000 — leaving the gross incomes at $115,000 and $85,000 respectively. Note that taxes are not considered in this calculation.
The ease of this calculation is attractive and would certainly make mediators’ work easier. The NY Guidelines are intended only for temporary alimony. But, “temporary” often morphs into “permanent” just by default. So, the question is whether simplifying the alimony calculation would overlook the many issues: health, age, length of marriage, earning capacity, for example, that judges in NJ are required to consider. And “Guidelines” often become rules which judges are reluctant to deviate from and which parties adhere to with strict allegiance.
In mediation and Collaborative divorce, the parties can adjust the alimony award, if any, to their individual needs. And, in the end, this should be the goal — allowing both parties to move forward in their lives.
For more information about divorce issues, contact Risa A. Kleiner, Esq. at 609.951.2222 or firstname.lastname@example.org