Divorce can have a significant economic impact on a family, including those families with special needs children or chronically ill children. Divorce often turns a household with two incomes into two households, each with only one income. This is difficult in today’s society (especially in New Jersey where the cost of living is so high). Divorce can also turn a single income household into a scenario where one parent/spouse does not work outside of the home or works outside the home, but does not earn enough to support themselves and their children.

Perhaps a parent/spouse gave up their career or cut back significantly on the number of hours worked in order to care for a special needs or ill child. This parent/spouse may be left feeling as if he/she are in a hopeless situation – stay in an unhappy marriage or have nowhere to go and be unable to support their children. He/she may also feel like he/she is are betraying their child or children that he/she has dedicated much of their life, too. Perhaps both husband and wife are unhappy, but he/she feels trapped by the daily care for their children with doctor’s appointments, therapy sessions, and dealing with insurance issues. This situation may seem overwhelming, but the alternative of continued unhappiness and dissatisfaction leaves the parent/spouse with no other option then to consult with an attorney about divorce.

In New Jersey, the family courts are a court of equity, which means that the goal is fairness. I am not saying that the outcome is always fair or seems fair at the time, but fairness is the goal.  If one parent/spouse gave up their career in order to care for a special needs or ill child (or any other reason) the law does not support them being left destitute. Instead, a parent/spouse’s economic dependency caused by a marriage may bring a claim for alimony.

The amount and length of the alimony award will depend on various factors and which type of alimony that a spouse may be entitled.  N.J.S.A. 2A:34-23 (b) governs alimony awards and provides 14 factors that should be considered by the court in determining whether a parent/spouse is entitled to alimony. These 14 factors are:

1. The actual need and ability of the parties to pay;
2. The duration of the marriage;
3. The age, physical and emotional health of the parties;
4. The standard of living established in the marriage and the likelihood that each party can maintain a reasonably comparable standard of living;
5. The earning capacities, education 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 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 availability 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;
13. The nature, amount, and length of pendente lite support paid, if any; and
14. Other factors the Court may deem relevant.

In addition to the 14 factors above, it is important to know that in determining whether there is an alimony obligation, a trial judge may impute income to a spouse who is voluntarily unemployed or underemployed. Tannen v. Tannen, 416 N.J. Super. 248, 261, 3 A.3d 1229 (App. Div. 2010), aff’d, 208 N.J. 409, 31 A.3d 621 (2011). Courts in New Jersey have consistently held that “imputation of income is appropriate for support purposes when a party is….without just cause, intentionally and voluntarily underemployed or unemployed.”  Caplan v. Caplan, 182 N.J. 250, 268(2005). Imputation of income allows a judge to realistically appraise a party’s capacity to earn. Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004); Weitzman v. Weitzman, 228 N.J. Super. 346 (App. Div. 1988).

It is important to consider imputation of income for parents of a special needs or ill child because depending on the circumstances and the supporting resources available, it may or may not be practical for the parent/spouse to return to the workforce. If the costs of childcare are in excess of the income that the parent/spouse would be earning or if he/she cannot secure transportation to services and therapy or doctor’s appointments, it may not be practical for them to return to work until the child is older or he/she can obtain additional services through the school district or other resources.

There are three types of alimony. The first type of alimony is Limited Duration Alimony. This is probably the most common type of alimony. It is for a “limited duration,” rather than for an open-ended period of time. It could be any length of time – 2 years, 5 years, 10 years, etc. The amount of time that Limited Duration Alimony is paid is based on the 14 factors above with a particular emphasis on factor 1 (actual need and ability of the parties to pay), factor 2 (duration of the marriage), and factor 4 (the standard of living during the marriage and the likelihood that each party can maintain a reasonably comparable standard of living).

The second type of alimony is Open Durational Alimony, which has an open-ended term. Open Durational Alimony is often presumed if a marriage has lasted longer than 20 years. It is important to note that Open Duration Alimony is not always forever. It is presumed terminated upon the payor spouse’s retirement at a certain age, which may be dependent on their field of work.

A parent/spouse who left their career or their education to care for children may be entitled to the third type of alimony – Rehabilitative Alimony – in addition to Limited Duration Alimony or Open Durational Alimony. This is a type of alimony takes factors 5, 6, and 8 (especially factor 8) into account. It is an amount of alimony paid that can assist a parent/spouse to obtain additional education, training, or similar in order to obtain more self-sustaining employment.