Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, September 3, 2005

Case Law Development: Modification of Limited Duration Alimony – Retroactive Application of Statute

In this case, the New Jersey appellate court decides that the statute standards for a newly created category of “limited duration alimony” should apply retroactively on any motion to modify term alimony. In doing so, the court carefully distinguishes permanent alimony, rehabilitative alimony, and limited duration alimony and considers how the standards of modification would apply tov a variety of maintenance orders.

Gordon v. Rozenwald, 2005 N.J. Super. LEXIS 260 (August 31, 2005)

The court notes that prior to the 1998 legislation, alimony statutes did not provide for limited term alimony other than that which the parties might negotiate.  The court carefully distinguishes the purposes of the forms of alimony. “Limited duration alimony, like permanent alimony, is based primarily on the marital enterprise. It is distinguishable from permanent alimony because the length of the marriage does not warrant permanent support and from rehabilitative alimony because the term is not based upon projections about time needed to acquire education or job skills.”

The limited duration alimony statute includes two standards for modification. The amount of the award may be modified upon a showing of either a change in circumstances or the nonoccurrence of circumstances that the court found would occur at the time of the award.  In contrast, the length of the term may not be modified "except in unusual circumstances."  The court found the application of this standard retroactively consistent with prior decisional law, which imposed a higher standard for modification of alimony when it was based on agreement and the length of the term was not determined by reference to a prediction about some future event.

The limited duration alimony statute also provides “The court shall not award limited duration alimony as a substitute for permanent alimony in those cases where permanent alimony would otherwise be awarded.  The court holds that courts should presume that limited duration alimony is not a substitute for permanent alimony. The court provides numerous examples of when an alimony decree would and would not be a substitute.  The court holds that “a party may overcome the presumption and avoid application of [the statute] by demonstrating, as part of a prima facie case, that the term is a substitute for permanent alimony premised upon a promise or expectation of alternative funds for support that has not been fulfilled or realized.”

Finally, the court reviews other cases in which divorce legislation was applied retroactively and finds that, in this case, retroactive application is appropriate because it is “consistent with the most reasonable interpretation of the Legislature's intention in supplementing the alimony law and because the curative amendment reflects decisional law…”


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