Will Alimony Reform Affect Military Divorces

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In rapid succession, the New Jersey legislature has managed to come to an agreement on an alimony reform law that has been debated and hotly contested for approximately three years.  The new law, which was passed at the close of the legislative fiscal year, is a compromise of a previous bill that imposed strict guidelines for the award of alimony.  While there are new regulations that apply under general circumstances, the court still has discretion to consider other issues and deviate from the guidelines in the interest of fairness, but these deviations are only in unusual and unique cases.

One of the concerns that has arisen in light of this new legislation, which is anticipated to be signed into law sometime this summer by New Jersey Governor Christie, is how military spouses going through a divorce will be impacted.  While there will be some effect on divorcing couples where one spouse is in the military, there are compensation matters that are not impacted by this new regulation.

A military spouse is entitled to a division of property under the Uniformed Services Former Spouses Protection Act (USFSPA) after being married to a military spouse for at least ten (10) years and when the spouse has been an active military member, where the service was attributable for retirement eligibility, for at least 10 years during the period of the marriage.  This commonly is referred to as the 10/10 Rule.  Once the spouse has met the eligibility requirements, the state court in which a divorce action has been filed may oversee the distribution of the military retirement pay.  Although this sometimes is referred to as lifetime alimony, this is an inaccurate designation that may confuse a person into thinking that their benefits may be restricted.  This distribution of property is not impacted by the recently-passed New Jersey alimony reform laws.  However, this is deemed to be marital property and a New Jersey court may distribute the payments over the lifetime of the spouse.

As for the payment of alimony, there is no special alimony provision for military spouses; therefore, a New Jersey military spouse who files for divorce will face the same impact of the alimony reform act as any other spouse seeking alimony, which includes the following:

  • For marriages that are shorter than 20 years in duration, a limitation on the term of alimony limited to the number of years in which the marriage lasted – although this is one of the main tenets of the new alimony reforms in New Jersey, there are special circumstances that will be considered by the court that will be considered if a party requests a deviation from the guidelines;
  • A rebuttable presumption that alimony will be terminated when the paying spouse reaches the retirement age established by the Social Security Act, currently set at 67 years of age;
  • Provisions for the inclusion of any interim support, known as pendente lite support, in the calculation of an alimony award;
  • The ability to seek a modification of the alimony award after involuntary unemployment for more than 90 days; and
  • The potential to temporarily cease or terminate alimony when a former spouse meets the standards for cohabitation – although there need to be affirmative actions that demonstrate a commitment to a mutually beneficial intimate relationship, it does not require consolidation into one household.

One more thing to consider with regard to the distribution of the retirement benefits is that once the 10/10 rule has been satisfied, the Defense Finance and Accounting Service (DFAS) may be directed by the state court to make the payment directly to the former spouse under the USFSPA.  However, the military retirement benefits still are subject to distribution in a divorce if the parties do not satisfy the 10/10 Rule, they simply must be handled by the court and the parties directly and the DFAS will not be involved in making the payments.

The Micklin Law Group, LLC is Experienced in the Nuances of New Jersey Divorce Law

Recent changes to the New Jersey divorce and alimony regulations, expected to be signed into law this summer, have led people to some confusion about what they will receive during a divorce settlement.  The knowledgeable New Jersey divorce attorneys at The Micklin Law Group, LLC will work with you to explain your rights and will advocate on your behalf throughout the divorce proceedings.  To schedule an initial consultation, call us at (973) 562-0100 to schedule an initial consultation.

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