Equitable Distribution Impacts Alimony Calculation
- September 15, 2014
- No comments
In the recent Appellate Division case, Overbay v. Overbay, the Defendant Mary Ellen Overbay appealed from a 2013 Family Court Order that reduced her alimony award and the amount of life insurance that her ex-husband, the Plaintiff Bruce Overbay, must maintain for her benefit as part of the process of equitable distribution. The parties in this case were divorced in 2002 following a thirty-one year marriage. All three (3) of their children were emancipated at the time of their divorce. The Plaintiff is currently seventy years old and the Defendant is sixty-seven. At the time of their divorce, the Plaintiff was working for ExxonMobil earning $132,000 per year. The Defendant was not in good health at the time of the divorce and was teaching two classes at Seton Hall University and earned $12,000 a year. Given her significant medical problems, the judge found that her “future employability [was] uncertain.” The court ordered equitable distribution and determined that the Plaintiff should pay to the Defendant $3,000 a month in alimony. Both parties appealed and the Appellate Court affirmed on all issues regarding equitable distribution but remanded for a re-calculation of alimony. Following a hearing, the Family Court judge ordered the Plaintiff to pay $3,750 a month in alimony and again the parties appealed. Again, the Appellate Court reversed the lower court’s decision and reinstituted the Defendant’s monthly budget to reflect $8,000, according to Rule 2:10-5. The Appellate Court then remanded back to the Family Court to modify the alimony award consistent with its ruling. Shortly thereafter, the Plaintiff filed a Motion for a downward modification of his alimony obligation based upon a reduction in his salary. The judge found that the Plaintiff had “proven a substantial and permanent change in circumstances based upon a change in employment at a reduced salary” and that the Defendant had a “decrease in the amount of alimony needed due to an increase in her income.” In 2013, the Plaintiff’s alimony obligation was reduced to $1050 a month and reduced the amount of life insurance that the Plaintiff had to maintain to $150,000. This appeal followed. The Appellate Court found that in determining an award of alimony, N.J.S.A. 2A:34-23(b) directs that a court should consider a set of statutorily defined factors to determine the obligation amount. The goal of an alimony award is to help the supported spouse to achieve a reasonably comparable lifestyle to what was enjoyed during the marriage. Crews v. Crews, 164 N.J. 11, 16 (2000). A judge may modify alimony based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139 (1980). “In an application brought by a supporting spouse for a downward modification in alimony . . . the central issue is the supporting spouse’s ability to pay.” Miller v. Miller, 160 N.J. 408, 420 (1999). However, this is only one factor that is considered and other factors such as personal assets and capacity to earn should also be considered. The Appellate Division then re-calculated the Plaintiff’s alimony obligation retroactively to compensate for the slow decline in his salary and ordered that from 2013 forward he pay $2,000 a month in alimony and have to pay arrearage amounts pursuant to an established schedule. The equitable distribution of assets and alimony are of the most emotional and complex aspects of a divorce. If you are involved in a battle over the division of marital property, assets, or debts or alimony it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, alimony contested divorce, uncontested divorce, spousal support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.