NJSBA Family Law Section

Example: Husband earns $140,000 gross. Wife earns $50,000 gross. The difference in gross incomes therefore comes to $90,000. By dividing $90,000 by a factor of three, the award to the Wife should therefore come to $30,000 per year. The parties were married for a total of six years. Since the marriage was one of less than ten years, the award should not be permanent, but one of limited duration. By dividing the total years married, six, by a factor of two, we then arrive at an alimony award of $30,000 per year for a limited duration of three years.

The given example is neither illustrative of competent advocacy nor of responsible adjudication. It is instead an example of non-professional clerical work, requiring a background in second-grade arithmetic. Horrifyingly enough, methods such as these have fallen into relatively common use. These various "rule-of-thumb" approaches, premised upon the fundamentally flawed presupposition that simplicity settles cases, are little more than fallacious appeals to popular wisdom that fail to provide a sufficient basis for determining alimony. Simplicity does not settle cases of its own accord; creative expertise does.

Simplicity straightjackets the creative process of solution generation, leaving significantly fewer alternatives to pick from. Overly simplistic analyses of alimony aspects tends far more toward crude horse trading than applied socio-economic science. It lends itself to participation in a zero-sum game, where there must by definition be a winner and a loser. Instead, we should be guided by the counsel of Albert Einstein, who said, "Make everything as simple as possible, but not simpler."

The now-notorious "divide by three" approach to admeasuring alimony purports to roughly equalize incomes while ignoring everything else. The formula ignores divergent tax consequences and is applied as if there were no discrete statutory factors for determining alimony. Instead, the method creates a per se mandate to equalize income, regardless of whether or not there were children of the marriage and notwithstanding the disparity in or levels of the incomes, to name just a few shortcomings. Since alimony must be calculated before a child support guidelines determination can be made, use of formulae such as this can pervert a good deal of the process.

Although there are various urban myths circulating concerning the origin of the divide-by-three approach, the root of the problem is clearly the now anachronistic common law. Although there was no absolute rule regarding the amount of an alimony award, the common law rule of thumb was "usually about one-third of the husband's income." Dietrick v. Dietrick, 88 N.J. Eq. 560, 561 (E. & A. 1918) (emphasis added). The rule may have derived from the general common law rule passing one-third of the husband's property to the wife upon his death. Id. at 93. See now N.J.S.A. 3B:8-1 (elective share of surviving spouse is one-third of estate).

Notably Dietrick, while referring to the common law one-third rule of thumb only in passing, continues, more thoughtfully, with the following formulation:

This rule of thumb was not "a hard and fast rule," Hebble v. Hebble, 99 N.J. Eq. 53, 56 (Ch.), aff'd o.b. 99 N.J. Eq. 885 (E. & A. 1926), and was often subject to criticism. Judges and lawyers were said to attach "undue importance" to the rule, "to the entire 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[.]" O'Neill v. O'Neill, 18 N.J. Misc. 82, 92-93 (Ch. 1939), aff'd 127 N.J. Eq. 278 (E. & A. 1940). In Turi v. Turi, 34 N.J. Super. 313, 321 (App. Div. 1955), the court declared that the one-third rule "has lost any significance it may have had in view of changing economic and social conditions." More recently, while not entirely abandoning the one third "guide," the New Jersey Supreme Court held that "it is not at all applicable . . . where the wife has a substantial income of her own." Capodanno v. Capodanno, 58 N.J. 113, 119 (1971).