Category: Special needs children

On August 31, 2018, the Appellate Division issued an unpublished decision in B.G. v. E.G.  This was a Union County case where after a 23 day trial, the court issued an 83 page letter opinion and Final Judgment of Divorce.  Defendant appealed from several portions of the Final Judgment of Divorce.  Plaintiff cross-appealed.

One of the most contested aspects of the case was the trial court’s decision to order open durational alimony following the parties’ 14 year marriage despite of the statutory alimony changes in 2017 wherein the standard for open durational alimony became 20+ years or “exceptional circumstances.”  In this case, the parties began dating in 1988, began living together between 1992 and 1994, had their first child in 1994, and got married in 2000.  The parties had three more children during the marriage.  Plaintiff filed her Complaint for Divorce on April 1, 2014.

At the time of trial, Plaintiff was a stay-at-home parent, as she had been for the duration of the marriage.  Defendant was unemployed but had a 5 year income average of approximately $132,000.  The parties and their four (4) children and lived a middle-class lifestyle.   Plaintiff sought open durational alimony.

The oldest child was emancipated by the time the trial concluded.  Defendant was designated as PPR (Parent of Primary Residence) of the second child and Plaintiff as PPR of the parties’ third and fourth child.  The court noted that the parties’ third child (who was 11 at the time of trial) had special needs.  The court recognized that the child is on the autism spectrum, has pervasive developmental delays and attends a special school.   The court further recognized that it was expected that this child would require continued care in the future beyond the age of 21.

While the parties had been married for 14 years, the court commented that they were a “monogamous couple” for 20 years.  The court also noted that the parties lived together in an “economically exclusive and supportive relationship” since 1992 and therefore the trial court did not rely solely on the date of marriage to determine the length of the married but considered the parties’ marriage to be “equivalent to a long-term marriage of over 20 years” and in light of this, the court awarded Plaintiff open durational alimony.

Defendant appealed several provisions of the Final Judgment of Divorce, including the portion regarding open durational alimony.  Defendant argued that N.J.S.A. 2A:34-23(c) limits the duration of alimony to the length of the marriage unless there are “exceptional circumstances”

While the Appellate Court did not agree that the prenuptial circumstances were independently the basis for “exceptional circumstances”, they found that there was other substantial credible evidence in the record to support a finding of “exceptional circumstances” that, when combined with the prenuptial circumstances, warranted open durational alimony for a marriage of 14 years.  The Appellate Court specifically outlined the fact that Plaintiff did not maintain career readiness as she was caring for the children and the parties’ home; highlighted the extensive responsibilities Plaintiff has had and will continue to have relative to being the primary caretaker for the parties’ child with special needs and reasoned how those responsibilities limit Plaintiff’s job availability.

The lesson to be learned from B.G. is that here is that “exceptional circumstances” may create an opportunity in the law that, at first glance, you might not have thought existed.