Appeals Department rejects alimony components – once more! | Fox Rothschild LLP

I’ve blogged many times about how there is no such thing as alimony formula, and besides, whenever a court imposes a formula, it’s always reversed by the appellate department. In 2020, I blogged about the last reported decision on the matter, SW vs GM, which strongly opposed formulas and gave a fairly clear and concise reason for it as follows:

For clarity, NJSA 2A:34-23(b)(4) does not signal the legislature’s intended income equalization or formulaic application in alimony cases, even if the parties have expended their entire income. Had the legislature’s intended alimony been calculated using a formula, the statutory requirement that the trial court must consider all statutory factors would not be necessary. Lawmakers declined to adopt a formulaic approach to calculating alimony. See assembly. 845, Leg. 216, 2014 Sess. (NJ 2014) (which refused to pass legislation calculating alimony duration based on a set percentage).

The Court further discussed the need and importance of marital lifestyle determinations as follows:

The importance of finding the marital lifestyle cannot be overstated. It is both the firm basis on which alimony is initially calculated and the fulcrum on which it can be adjusted if circumstances change in the years following the original grant. …

In Hughes, parties spent more than they earned, relying on credit and parental support to accommodate the marital lifestyle. 311 NJ Super. at 34. The trial judge discounted those additional funds and determined the lifestyle based only on the family’s earned income, which the judge described as a “real” standard of living. ibid. we held”[t]he judges. . . two concepts confused. The standard of living during marriage is how the couple actually lived, whether they resorted to credit and parental support or limited themselves to earned income.” Ibid.

In many cases, the parties live beyond their means or spend their income and assets to meet expenses. In such cases, a marital lifestyle determination must take into account what the parties spent during the marriage and not merely offer a nod to a past, unattainable lifestyle. In this case, the trial judge overlooked the teachings of Crews and Hughes and our instruction to count the marital lifestyle. Insofar as Crews and Hughes implicitly required that marital lifestyle be determined numerically, we now expressly state that a determination of marital lifestyle must be made by explaining and quantifying the characteristics of the lifestyle.

The question of formulas came up again in Galski v. Galski, an unreported (non-precedent) appeals division decision that was released on December 2, 2022. In this case, the court awarded the payer $250,000 as his income and fixed alimony based thereon. Because his income was both variable and paid through salary and quarterly bonuses, he advocated a formula whereby his alimony payments would be paid partly from his base salary and partly from his quarterly commissions, with an annual cap of $70,000. The appeals division dismissed this in one sentence as follows:

He cites no precedent to oblige the court to do so, and we see no compelling reason to limit the court’s discretion in this way.

Not only is there no precedent, but time and time again the Court of Appeals has ruled that this is not possible. This does not mean that the parties themselves cannot agree to this. In fact, it often happens that the paying spouse’s income fluctuates significantly from year to year. But the court cannot order it in court, which the payer learned about in this case.

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