For decades, New Jersey courts have been required to consider the extent of premarital economic dependency in establishing the duration of alimony. Our Supreme Court has time and again reaffirmed that “the extent of actual economic dependency, not one's status as a wife [or husband], must determine the duration of support as well as its amount.” Lepis v. Lepis, 83 N.J. 139, 155 (1980); Lynn v. Lynn, 91 N.J. 510, 517 (1982). Over time, that rationale has filtered down through the judiciary and blurred the line between marital and non-marital relationships, which culminated in the case of McGee v. McGee, 277 N.J. Super. 1 (App. Div. 1994).

In McGee v. McGee, 277 N.J. Super. 1, 4 (App. Div. 1994), the parties began dating in 1981. By 1983, they had moved in together, and except for a relatively brief separation in 1984, they continued to live together thereafter. The parties were married in 1989, and a complaint for divorce was filed in 1991. According to the Appellate Division, “[f]rom 1981 onward, Dr. McGee supported Mrs. McGee financially.” Ibid. Dr. McGee paid all the household bills, provided his wife with credit cards, and gave her $300 in cash per week. Mrs. McGee, for her part, undertook “all of the household and domestic responsibilities; cooked dinner; ran errands; did the cleaning and laundry; cared for the horses and shopped for food and clothing for herself and Mr. McGee.” Ibid. In short, the parties “engaged in a traditional marital partnership long before the formalities of marriage took place.” Ibid. Dr. McGee even “admitted that they occasionally held themselves out as husband and wife.” Id. at 5. During their divorce proceeding, Mrs. McGee sought permanent alimony, but the trial court ordered Dr. McGee to pay just six months of rehabilitative alimony at a rate of $750 per week.

On appeal, Mrs. McGee challenged the sufficiency of that award, and she prevailed. The Appellate Division reversed principally because the trial judge “did not address the long period of cohabitation in his opinion.” The Appellate Division reasoned that:

***Mrs. McGee lived with Dr. McGee long before the marriage and gave up her job, if not because Dr. McGee asked her to do so, at least because he was willing to support her. She became financially dependent on him as early as 1981. Mrs. McGee made many non-financial contributions to the relationship during which, while she labored at home, Dr. McGee doubled his income.

McGee, 277 N.J. Super. at 14.

Since its publication in 1994, McGee has been relied upon by countless matrimonial attorneys to argue that courts musts consider premarital cohabitation in determining the duration of alimony. Likewise, courts have relied upon and discussed the holding in McGee when assessing the proper duration of alimony in cases involving substantial premarital cohabitation. See, e.g., Wass v. Wass, 311 N.J. Super. 624, 630 (Ch. Div. 1998) (citing McGee when considering not only the parties' nine-year marriage but also their six-year premarital cohabitation “for a total of fifteen (15) years”).

It appears, however, that the legal pendulum has now swung in the opposite direction; both New Jersey's legislature and its Supreme Court have reasserted a bright line between marital and non-marital relationships. For example, in 2009, our legislature revised the statute of frauds, N.J.S.A. 25:1-5, to require promises of support between unmarried parties to be contained in a signed writing executed with the advice of counsel:

***No action shall be brought upon any of the following agreements or promises, unless the agreement or promise, … shall be in writing, and signed by the party to be charged therewith … : (h) A promise by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of such relationship or after its termination. For the purposes of this subsection, no such written promise is binding unless it was made with the independent advice of counsel for both parties.

That revision effectively ended the era of palimony claims and further cemented the distinction between marital and non-marital relationships.

Likewise, in September 2014, our legislature made substantial revisions to the statute governing alimony. N.J.S.A. 2A:34-23. In adopting those changes, the legislature dramatically reshaped the considerations governing the duration of alimony. Specifically, the current version of N.J.S.A. 2A:34-23 provides that “[f]or any marriage or civil union less than 20 years in duration, the total duration of alimony shall not, except in exceptional circumstances, exceed the length of the marriage or civil union.” Further, the legislature cited instances of exceptional circumstances “which may require an adjustment to the duration of alimony includ[ing]: … “(2) The degree and duration of the dependency of one party on the other party during the marriage or civil union[.]” (Emphasis added). Critically, there is nothing in the plain language of the statute that would permit courts to consider premarital cohabitation in extending the duration of alimony. Indeed, the language “during the marriage or civil union” above appears to directly contradict and supersede the Appellate Division's holding in McGee, which required consideration of economic dependency prior to the marriage.

Generally, “[w]hen interpreting statutory language, the goal is to divine and effectuate the Legislature's intent.” State v. Shelley, 205 N.J. 320, 323 (2011) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Thus, the court should begin its inquiry with the statute's plain language, giving its terms their “ordinary and accepted meaning.” Ibid. Further, when a statute “is clear and unambiguous on its face and allows for only one interpretation, [courts] should 'delve no deeper than the act's literal terms[.]'” Lewis v. Bd. of Trustees, Pub. Emp. Ret. Sys., 366 N.J. Super. 411, 415 (App. Div. 2004) (quoting State v. Butler, 89 N.J. 220, 226 (1982)).

Here, the term “during the marriage or civil union” may be interpreted to mean just that: during the marriage or civil union and not before.

Courts that desire to take this approach will likely find support in Thieme v. Aucoin-Thieme, 227 N.J. 269 (2016). Therein, the court reaffirmed that “the equitable distribution statute does not govern disputes over property between parties who have cohabited but have never entered into a marriage or civil union.” Id. at 284 (citations omitted). The court's rationale was of particular relevance:

***The Legislature has limited the property that is subject to equitable distribution to “property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union.” Although the language “during the marriage or civil union” is not defined in the statute, it is unambiguous. It is evident that the Legislature did not intend to treat property acquired during a period of cohabitation prior to a marriage or civil union as the equivalent of property acquired during that marriage or civil union, for purposes of equitable distribution.

Id. at 284-85 (citation omitted).

In reaching this conclusion, the Supreme Court distinguished prior Appellate Division holdings in Weiss v. Weiss, 226 N.J. Super. 281, 287 (App. Div. 1988) (holding that “for the purpose of triggering a right of equitable distribution a marital partnership may be found to have commenced prior to the marriage ceremony, where the parties have adequately expressed that intention and have acquired assets in specific contemplation of their marriage”), and Berrie v. Berrie, 252 N.J. Super. 635, 646 (App. Div. 1991) (holding that the rationale expressed in Weiss was not “confine[d] … to an early purchase of a marital home” and instead could be applied more broadly in appropriate circumstances). Given the court's conclusion that “during the marriage or civil union” is unambiguous in the context of equitable distribution, it would seem difficult to find that phrase ambiguous in the context of alimony. Thus, Thieme might serve as a roadmap for holding that McGee has been superseded by statute.

Nevertheless, counterarguments and creative remedies abound, and courts that desire to take an opposite tack will likely find ample reason to do so. First, the legislature allowed courts to consider “[a]ny other factors or circumstances that the court deems equitable, relevant and material” in determining whether the supported spouse has demonstrated exceptional circumstances warranting an adjustment to the duration of alimony. N.J.S.A. 2A:34-23(c)(8). It might be argued forcefully that such other factors or circumstances include premarital economic dependency, especially because: (1) the legislature is presumed to be familiar with both statutory and common law, Johnson Machinery Co. v. Manville Sales Corp., 248 N.J. Super. 285, 306 (App. Div. 1991), including “existing judicial statutory interpretations,” Chase Manhattan Bank v. Josephson, 135 N.J. 209, 227 (1994); and (2) “[t]he intention to change a long-established rule or principle is not to be imputed to the Legislature in the absence of a clear manifestation thereof.” Elberon Bathing Co. v. Ambassador Ins. Co., 77 N.J. 1, 18 (1978) (citation omitted). Thus, to the extent the legislature intended to supersede McGee, it should have expressed that intention more directly.

Second, even if McGee has been statutorily superseded, remedies remain available. For example, while the Supreme Court in Thieme relied on principles of statutory interpretation to reaffirm that equitable distribution is limited to property acquired during the marriage or civil union, it nevertheless held that courts can “employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts[] in order to [i]nsure that one party has not been unjustly enriched, and the other unjustly impoverished, on account of their dealings.'” 227 N.J. 269, 289 (2016) (quoting Carr v. Carr, 120 N.J. 336, 352 (1990)) (alterations in original). Where one spouse has made substantial sacrifices prior to the wedding ceremony, his or her attorney can contend that equitable remedies should be made available in this context as well.

Both sides of the issue have legitimate arguments to make. For now, the outcome remains unclear.

Andrew M. Shaw is an associate with DeTommaso Law Group in Warren Township, a firm dedicated to family law matters.