I couldn't agree more with Alice's sentiment. By the way, I recently heard through the grapevine that someone was boasting at a seminar that they created the so-called one-third rule of thumb. As we noted in our NJSBA amicus brief in Gnall v. Gnall, New Jersey courts have been grappling with efforts to use the so-called one-third as early as 1917. From our NJSBA amicus brief:
A. For Over 175 Years, New Jersey Courts Have Resisted the Temptation to Use Mathematical Formulas or Bright-Line Rules to Determine the Amount or Duration of an Alimony Award.
In order to ensure that an alimony award does not punish a payor spouse, nor result in an unjustified windfall to a payee spouse, New Jersey Courts have continuously refused to sacrifice customized decisions rendered through a careful analysis of the particular facts of the case before it for the use of a mathematical formula that would result in the same amount and duration of alimony being awarded in marriages of comparable duration or earning capacity.
In fact, as early as 1838, Chancellor Pennington held in the case of Richmond v. Richmond, 2 N.J. Eq. 90, 92 (Ch. 1838) that "it is impossible to frame a fixed, general rule for allowances of this character which would work justly in all cases; every case must depend very much on its own peculiar circumstances." Turi v. Turi, 34 N.J.Super. 313, 321 (App. Div. 1955).
Accordingly, whenever litigants or attorneys have attempted to advocate to our appellate courts for a strictly formulaic approach to alimony in New Jersey, such as awarding a non-working spouse one-third of the other spouse's income (or a working, yet still dependent spouse, one-third of the disparity between the parties' respective incomes) our appellate courts have consistently rejected such notions. For instance, nearly sixty years ago, in Turi, supra, 34 N.J. Super. at 321-22, the Appellate Division admonished:
"It may be noted, in passing, that the observation made in Dietrick that the amount allowed the wife is "usually about one-third of the husband's income" - see Hebble v. Hebble, 99 N.J. Eq. 53, 56 (Ch. 1926), affirmed Ibid. 99 N.J. Eq. 885 (E. & A. 1926), and Andreas v. Andreas, 88 N.J. Eq. 130, 133 (Ch. 1917), for a similar statement - has lost any significance it may have had in view of changing economic and social conditions. The one-third standard has never been more than a guide, and has been referred to as "not a rule, even in a loose sense." O'Neill v. O'Neill, 18 N.J. Misc. 82, 93, 11 A.2d 128 (Ch. 1939), affirmed 127 N.J. Eq. 278 (E. & A. 1940). This criticism is justified in view of the provisions of N.J.S. 2A:34-23 and 24, whose language has been followed by our highest courts. As observed in the O'Neill case, to follow the one-third rule would result in the total obliteration and undiscriminating exclusion of the many other factors that should be considered and which have more or less importance, depending on the circumstances of particular cases." (Emphasis added).
See also Capodanno v. Capodanno, 58 N.J. 113, 119-20 (1971)(Court rejecting use of one-third rule and instead focusing on the particular facts of the case before it).
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Brian G. Paul, Esq.
Certified Matrimonial Law Attorney
Szaferman, Lakind, Blumstein & Blader, P.C.
101 Grovers Mill Road
Lawrenceville, New Jersey 08648
Phone: 609-275-0400
Direct Fax: 609-779-6065
[email protected]
