“Rules Of Thumb” Have No Place In Divorce and Family Law Mediation
By: Bruce P. Matez, Esquire
NJAPM Accredited Mediator
APFM Certified Advanced Practitioner
For many years, judges, lawyers and mediators have referred to a fictional “rule of thumb” for determining alimony. In mediations, many clients have told me that their lawyer said this is the way alimony is calculated. In recent years, there has been a great deal of discussion about a new “rule of thumb” for calculating alimony now that alimony is no longer taxable. CLE presenters generally begin presentations on this topic with a disclaimer that there is no case, statute, or rule which establishes a formula for calculating alimony. Yet, it seems that everyone in the family law community, including mediators, is looking for that formula.
Let’s be clear; there is NO “rule of thumb” for calculating alimony. A “rule of thumb”, is a legal fiction created by lawyers to find a simpler way of addressing a complicated issue. While I understand that it provides for an easy answer, mediation clients can easily become attached to it, which in turn stifles discussion. Judges are prohibited from applying a “rule of thumb”; they are required to analyze the statutory factors, as should lawyers and mediators.
The Family Law Executive Committee (“FLEC”) of the New Jersey State Bar Association carefully and thoughtfully collaborated with the legislature to revise the alimony statute. Various formulas for calculating alimony were proposed, considered, and thoroughly vetted. Those that worked diligently on this issue spent countless hours reviewing alimony statutes and formulas from other states and debated the concept of promulgating alimony guidelines similar to child support guidelines. Ultimately, it was the position of the FLEC, and the decision of the New Jersey Legislature, NOT to include a specific formula nor guidelines for calculating alimony in the revised alimony statute. Instead, it was determined that every alimony determination must be addressed on its own merits, based on individual facts and circumstances, and by way of an appropriate analysis of the statutory factors.
The proposed new alimony “rule of thumb” completely avoids any appropriate analysis of the parties’ needs, marital lifestyle, and the other statutory factors as well as discussion of the parties’ financial circumstances, budgets, etc., and gives them a false sense of entitlement and obligation, and stifles discussion. It is also contrary to legislative intent.
In addition to the new alimony “rule of thumb” that is being bantered about, there appears to be a default “rule of thumb”, or presumption, of a 50/50 distribution of marital assets. This is also a legal fiction, as there is no statute or case law which supports this “rule” or presumption either.
In my opinion, “rules of thumb” are inappropriate for use in divorce and family law mediation and are the antithesis of what mediation is and should be. We owe a duty to our mediation clients to do better than mechanically apply “rules of thumb” or to tell them that they exist. That is not what I was taught mediation is supposed to be. I was taught that divorce mediation is a process which promotes spouses to discuss their mutual, individual, and family’s goals, interests, and needs, and determine how to appropriately and fairly allocate their overall net income, and distribute their assets, as they deem fair, in their opinion. If we, as mediators, promote a “rule of thumb” for calculating alimony, a similar one or a presumption for equitable distribution, and apply child support guidelines mechanically, divorcing couples will no longer need mediators to assist them in addressing these financial issues; they will be able go online or otherwise simply do it themselves.