Mr. Finnerty and the attorneys at Finnerty, Canda & Concannon, P.C. have a unique perspective with respect to the evolving law of alimony. Mr. Finnerty was one of the principal drafters to the revisions to the New Jersey alimony statute that were adopted effective September 10, 2014. He was one of a core group of the Matrimonial Lawyers Alliance that conceptualized changes in the law in areas of retirement, lifestyle, cohabitation and change of circumstances applications. He also was one of the primary drafters of the statutory amendments that were adopted to address those concerns, and tirelessly lobbied legislators to introduce reform legislation that was appropriate and reasonable.
In addition, Mr. Finnerty was the prevailing attorney in the case of Lepis v. Lepis, 83 N.J. 139 (1980), which created the New Jersey standard for a change of circumstance application. The Supreme Court in Lepis accepted the principal being advocated by Mr. Finnerty: that alimony and child support agreements or court orders were not immutable. He successfully argued that if circumstances changed, modifications could be ordered to assure continued fairness and equality of support orders. Mr. Finnerty also was the prevailing attorney in Shiffman v. Shiffman, 211 N.J. Super. 189 (App. Div. 1986), which created precedent regarding the ability to modify rehabilitative alimony upon a showing of change circumstances.
Alimony is not intended to be a punishment, but rather an economic recognition that it may be necessary for one spouse to pay support to another because of the circumstances of their marriage and their respective earning power, so that both are allowed to maintain the marital lifestyle. The marital lifestyle is an entitlement of both spouses, if possible. If it is not possible for both to maintain the marital standard of living, then both will have to compromise.
The Courts assess evidence about multiple criteria in making awards that are “fit, reasonable, and just.” In addition to the lifestyle factor there are factors such as: needs and ability to pay, duration of the marriage, age, physical and emotional health of the parties, earning capacities, education levels, employability, parental responsibilities for children, time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, history of the financial or non-financial contributions to the marriage by each party, equitable distribution of property ordered, income available to either party through investment of any assets, tax treatment and consequences to both parties of any alimony award, and any other factors.
Different forms of alimony can be awarded: open durational for marriages 20 years or more, limited duration and rehabilitative. Rehabilitative alimony can be awarded in conjunction with open durational and limited durational alimony. Pursuant to the new amendments the length of alimony in any marriage less than twenty years cannot be longer than the length of the marriage unless exceptional circumstances exist. Exceptional circumstances are defined by the statute and must be skillfully advocated. However, the statute does not state that for marriages less than twenty years alimony must be the length of the marriage. There are no absolutes and creative advocacy of the facts is important. Lawyers must be adroit at asking the right questions of clients to get the information they need. No two marriages are the same. Every case is different.
In addition, when considering issues of alimony and child support, the Court is empowered to create security for the performance of those obligations. In other words, it is usually appropriate for parties to negotiate and agree upon an amount of life insurance on each party’s life to secure the support payments that may be necessary for both alimony and child support in the event of the death of either parent. Provision of security for support in the event of death is a customary provision in all negotiated settlements or Court decisions.
When assessing alimony and child support, Courts must be aware of the respective earnings of each party and if a spouse owns a business through which personal perquisites are provided, then a forensic investigation of what those perquisites are needs to be done. In addition, alimony is based upon the concept of marital lifestyle and, therefore, what that marital lifestyle is, must be determined. The marital lifestyle is how and what money was spent for during the marriage in connection with the categories of expenses that actually occurred, examples of which are listed in Case Information Statements. This form must be filled out under oath and filed with the Court. Forensic economic experts frequently are utilized to assist with arriving at calculations of the marital