An Act concerning child support and alimony and amending N.J.S.2A:34-23.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. N.J.S.2A:34-23 is amended to read as follows:

2A:34-23. 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.

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.

The obligation to pay child support may be modified based upon changed circumstances, which may include a diminishment of the obligor's income due to unemployment, temporary disability or similar circumstances for a period lasting longer than six months, unless the court determines that such diminution in income was deliberately incurred by the obligor in order to evade such support obligation or that the obligor has failed to make reasonable efforts to secure alternative employment.

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: permanent 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;

(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; and

(13) Any other factors which the court may deem relevant.

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 permanent alimony, the court shall consider and make specific findings on the evidence about the above factors. If the court determines that an award of permanent alimony is not warranted, the court shall make specific findings on the evidence setting out the reasons therefor. The court shall then consider whether alimony is appropriate for any or all of the following: (1) limited duration; (2) rehabilitative; (3) reimbursement. In so doing, the court shall consider and make specific findings on the evidence about factors set forth above. The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.

An award of permanent alimony may be modified based either upon: (1) changed circumstances, which may include a diminishment of the obligor's income due to unemployment, temporary disability or any other similar circumstance for a period lasting longer than six months; or (2) upon the nonoccurrence of circumstances that the court found would occur at the time of the award. An award of permanent alimony shall not be modified if the court determines that such diminution in income was deliberately incurred by the obligor in order to evade such alimony obligation or that the obligor has failed to make reasonable efforts to secure alternative employment.

An award of alimony for a limited duration may be modified based either upon : (1) changed circumstances, which may include a diminishment of the obligor's income due to unemployment, temporary disability or any other similar circumstance for a period lasting longer than six months; or (2) upon the nonoccurrence of circumstances that the court found would occur at the time of the award. An award of limited duration alimony shall not be modified if the court determines that such diminution in income was deliberately incurred by the obligor in order to evade such alimony obligation or that the obligor has failed to make reasonable efforts to secure alternative employment.

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: (1) changed circumstances, which may include a diminishment of the obligor's income due to unemployment, temporary disability or any other similar circumstance for a period lasting longer than six months; or (2) upon the nonoccurrence of circumstances that the court found would occur at the time of the rehabilitative award. An award of rehabilitative alimony shall not be modified if the court determines that such diminution in income was deliberately incurred by the obligor in order to evade such alimony obligation or that the obligor has failed to make reasonable efforts to secure alternative employment.

This section is not intended to preclude a court from modifying permanent 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.

f. Nothing in this section shall be construed to limit the court's authority to award permanent 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. In all actions where a judgment of divorce, dissolution of civil union, divorce from bed and board or legal separation from a partner in a civil union couple 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.

(cf: P.L.2006, c.103, s.78)

2. This act shall take effect immediately.

STATEMENT

This bill amends N.J.S.A.2A:34-23, concerning child support and alimony, to provide that an obligor's child support or alimony payments may be modified when an obligor's income is diminished due to unemployment, temporary disability or other similar circumstance.

Child support modification. Under the provisions of the bill, subsection a. of N.J.S.A.2A:34-23 would be amended to allow the court to modify child support payments based upon changed circumstances, which may include a diminishment of the obligor's income due to unemployment, temporary disability or similar circumstances for a period lasting longer than six months, unless the court determines that such diminution in income was deliberately incurred by the obligor in order to evade such support obligation or that the obligor has failed to make reasonable efforts to secure alternative employment.

Alimony payment modification. The bill would amend subsections c. and d. of N.J.S.A.2A:34-23 concerning permanent, limited duration, and rehabilitative alimony to clarify when a modification of alimony payments may be made. Those provisions concerning reimbursement alimony would remain unchanged, therefore this type of alimony could not be modified.

The bill provides that the court may modify an award of permanent, limited or rehabilitative alimony based either upon changed circumstances which may include a diminishment of the obligor's income due to unemployment, temporary disability or any other similar circumstance for a period lasting longer than six months, or upon the nonoccurrence of circumstances that the court found would occur at the time of the award. However, the bill provides that modification of an award would not occur if the court determines that such diminution in income was deliberately incurred by the obligor in order to evade such alimony obligation or that the obligor has failed to make reasonable efforts to secure alternative employment.