One of the most contested areas of divorce is the area of spousal support. Spousal support is called maintenance in New York and alimony in New Jersey. However, the goal of spousal support whether termed alimony or maintenance is the same; “to assist the supported spouse in achieving a lifestyle reasonably comparable to the one enjoyed during the marriage.”
Unfortunately, given the emotional issues surrounding divorces the issue of spousal support often does not settle and the parties go to trial. After trial one or both of the parties will not be happy either the length of the award or the amount of the award. If you are unhappy with the award you have the right to appeal to a higher court. Before you appeal that decision you must consider and understand the concept of judicial discretion in spousal support cases.
Judicial discretion means the power of a judge to make legal decisions according to her discretion. The court’s decision will not be over-ruled by a higher court if the decision is based on reasonableness and it adheres to settled law.
Every spousal support case is unique and the judge in using her discretion in making an award considers a myriad of factors. These factors include the length of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the parties to become self-supporting, the standard of living of the parties during the marriage, and the income and property of the parties.
Before you decide to appeal an award of spousal support, you should seek guidance from an attorney that has vast experience in appellate matrimonial practice. That attorney will review your case file and will tell you whether she believes the court abused its discretion in fashioning the award and will tell you whether or not to appeal same.
This month we review the two cases below where the trial judges’ decisions on spousal support were found to be in error.
The Court Upwardly Modified the Length of the Maintenance Award to Wife
Repetti v. Reppetti 2017 NY Slip Op 01396
In the matter of Repetti v. Repetti, the Appellate Court modified the spousal support to the Wife. Here the parties were married for approximately 23 years. The wife, a homemaker, was the primary caregiver to the couple’s four children. The husband was a partner in an accounting firm.
The lower court, among other things, awarded the wife $70,200 per year in maintenance for about eight years. Both husband and wife appealed. The appellate court increased the duration of wife’s maintenance to “the first of her remarriage, her attainment of the age of 67 or such age that she would qualify for full Social Security benefits or her death.”
In this case the decision of the wife to appeal the judge’s ruling on spousal support was a sound one. The lower court’s decision of only giving the homemaker wife 8 years of spousal support after a 23 year marriage was in the lower range of what was reasonable. Moreover, a hard stop approach to maintenance seems to be inherently unfair in a marriage of such long duration, with the wife being the home maker and primary caregiver to four children.
New Jersey’s Appellate Division Downwardly Modifies the Length of the Alimony Award to Wife
20-2-2118 Atwell v. Atwell, N.J. Super. App. Div. (per curiam)
In Atwell v. Atwell, the court downwardly modified the length of the alimony award to wife. The parties were married in March 2004. There were no children born to the marriage. In addition, the wife did not work throughout the marriage. The wife filed for divorce in May 2010. Thus the parties were married for approximately six years and the wife and husband were respectively 57 and 58 years old. The wife was disabled and receiving social security disability and workers compensation payments.
During the divorce proceedings the wife made a motion for and was granted temporary alimony for a total of 4 years. The divorce case concluded with the court issuing a judgment of divorce in May 2015. The court gave the wife alimony for an additional 5 years from the date of divorce judgment.
The husband appealed the length of the alimony award. He argued that since the wife received temporary support for four years, the award of five years alimony from the date of the divorce judgment effectively gave her nine years of alimony, exceeding the length of the parties’ six-year marriage in violation of New Jersey Law. (N.J.S.A. 2A:34-23(c)).
Under (N.J.S.A. 2A:34-23(c), except for exceptional circumstances, the total duration of alimony shall not exceed the length of the marriage.
The Appellate Division agreed with the husband. The panel found that the wife should have only gotten two additional years of spousal support.
The Appellate Division clearly sent a strong message to trial courts. The recently enacted mandate that alimony is not to exceed the length of the marriage is one that will be given high deference. Exceptional circumstances will have to be truly exceptional. The age or ability of the spouse receiving alimony may not be enough for a finding of exceptional circumstances to increase the length of a spousal support award.