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Smith v. Smith

Decided: January 19, 1988.

TRACY ANN SMITH, NOW KNOWN AS TRACY ANN DAHL, PLAINTIFF,
v.
MATTHEW PAUL SMITH, DEFENDANT



Epstein, P.J.F.P.

Epstein

[224 NJSuper Page 560] The sole remaining issue in this post-judgment motion is whether N.J.S.A. 2A:34-25 mandates the termination of rehabilitative alimony upon the remarriage of the recipient

spouse.*fn1 The issue has not been addressed previously by any reported New Jersey decisions.

The parties were married in 1980. Three children were born of the marriage. Prior to the marriage, plaintiff was employed as an assistant in a dentist's office. She stopped working during her first pregnancy and remained at home until after the parties separated. Plaintiff then used the proceeds of a $3,500 loan to pay her tuition in a hair styling school from which she graduated in August 1987.

The case was tried to conclusion in October 1986 and defendant was ordered to pay rehabilitative alimony to plaintiff for a period of five years. Plaintiff remarried on August 1, 1987.

N.J.S.A. 2A:34-25 states:

if after the judgment of divorce the wife shall remarry . . . the court shall modify any judgment as to the alimony of the former wife by vacating and annulling any and all provisions in . . . such judgment . . ., directing the payment of money for the support of the former wife.

It is absolutely clear from the case law that the court has no discretion but to terminate alimony upon remarriage of the recipient spouse. See Sharpe v. Sharpe, 109 N.J. Super. 410 (Ch.Div.1970) and Lepis v. Lepis, 83 N.J. 139 (1980).

Rehabilitative alimony is a relatively recent concept which postdates the statute. It was defined in Turner v. Turner, 158 N.J. Super. 313 (Ch.Div.1978) as:

alimony payable for a short but specific and terminable period of time, which will cease when the recipient is, in the exercise of reasonable efforts, in a position of self-support. [at 314]

The "notion of rehabilitative alimony" has been accepted in Lepis, supra, as "consonant with the basic underlying rationale that a party is entitled to continue at a customary standard of

living inclusive of costs necessary for needed educational training." Mahoney v. Mahoney, ...


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