Is Alimony a Pension or is There a Duty to Mitigate?

Everyone remembers the widespread devastation caused by Super Storm Sandy in 2012. Thousands of homes were without electricity. Massive trees were uprooted and scattered like toothpicks on a table. Miles of roads were rendered inaccessible. Homes were damaged or destroyed. Gasoline was in short supply. In areas flooded by the storm, insurance carriers, unable to reach their insureds, notified the public at large to proactively remove the first four feet of sheetrock to avoid the potential spread of black mold. In short, insurers were advising their insureds to mitigate their losses by taking steps to prevent the growth of mold spores, thereby decreasing their financial exposure.

The duty to mitigate is founded on logic and commonsense. Principles of equity spring to mind. It is well settled that injured parties have a duty to take reasonable steps to mitigate damages.1 “If the victim of a breach can protect himself from its consequences he must do so. He has a duty to mitigate damages….This is a duty, a kind of altruistic duty, towards one’s contractual partner, the more altruistic that it is directed to a partner in the wrong. But it is a duty without cost, since the victim of the breach is never worse off for having mitigated. Rather it is a duty that recognizes that contractual duties are onerous enough that they should not be needlessly exacerbated.”2

In a 1978 Chancery Division case, Turner v. Turner, a trial court gave life to the concept of rehabilitative alimony, later codified in N.J.S.A. 2A:34-23.3 In crafting the argument in support of the necessity for this form of alimony, the Turner court noted that “[a]limony should not, as one court said, permit ‘a wife capable of work to sit in idleness.’”4 As another court said, “they (women) are no longer per se entitled to a perpetual state of assured income or, as some would characterize it, assured indolence.”5 The Turner case heralded “a new philosophy, which is that a divorced woman, when able, should be required to mitigate the burden of her former husband to pay alimony by utilizing her own financial means or her earning potential or both.”6

The duty to mitigate has long been a guiding beacon of equity. In a departure from prior, longstanding case law, the New Jersey Supreme Court held that as a matter of basic fairness, landlords have a duty to mitigate damages when they seek to recover rents due from a defaulting tenant.7 The duty to mitigate justifiably permeates all areas of the law. Unless the facts establish otherwise, an obligee should be “expected to engage in gainful employment, commensurate with…her education, skills, training and ability to work in accordance with the common law duty to mitigate damages.”8 Stated broadly by Justice Daniel O’Hern in a dissenting opinion involving a wrongful death action, “every person has a duty to mitigate damages.”

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