Age may not have been “just a number” for singer/Real Housewife of Beverly Hills star Erika Jayne and lawyer Tom Girardi, who recently announced their separation. The couple, 33 years apart in age, was a fixture on the Bravo reality show.
Eighty-one year old Tom is the head of a famous California law firm and appeared on the show as a serious and absent, but controlling, husband. In contrast, forty-nine year old Erika, a former cocktail waitress, appeared as foul-mouthed and provocative, with a take-no-prisoner’s attitude toward, well, everyone. So, isn’t it just shocking that two such similar sounding people couldn’t make it till death-do-they-part… However, surprisingly, their marriage did make it to the 21 year mark.
According to his law firm’s website, Tom is still working. Erika Jayne is still working it; she has the TV show, Billboard singles, and endorsement deals under her belt. For purposes of this blog though, I am going to assume that Tom, head of a firm which has received “the most success in all of California” per its very modest and understated website, is the breadwinner. Apparently the pair also had no prenuptial agreement. So, what, you may ask, is Erika entitled to, other than, well, a lot?
If Tom and Erika were getting divorced in New Jersey, theirs would fall into the category of a long term marriage because it lasted more than 20 years. In such a scenario, Erika may be entitled to Open Durational Alimony (“ODA”) from Tom (i.e. alimony awarded in marriages lasting 20 years or longer).
Exactly how long does ODA last, you ask? Well, it’s called “Open Durational” for a reason. As a result of the NJ alimony amendments in 2014, ODA has no definitive end date but presumptively terminates upon the person paying, “the Tom”, reaching full social security retirement age, about 66 or 67. This presumptive end is just that—a presumption—one that could be overcome by “the Erika” in the future if she were receiving alimony from “the Tom” and he sought to terminate it based upon his retirement.
To overcome the presumption, a court would have to review a variety of factors, including the ages of the parties at the time of “the Tom’s” retirement, their ages at the time of the marriage and entry of the alimony award, the degree of “the Erika’s” economic dependency during the marriage, the assets, sources of income, retirement savings, and other factors.
If ODA has a rebuttable presumption of termination upon “the Tom” reaching full social security retirement age, why would Tom Girardi have to pay if he is 15 years past it? Can’t he just enjoy his twilight years without having to pay alimony to that young whippersnapper? If he were actually retired, maybe, depending on a lot of other factors. But, he’s still working, and if he is still out-earning Erika, she has an argument for alimony despite his age.
While this May/December romance may be headed for the end of its life, the legal battle could be alive and well for a while.
The Family Law department at Cooper Levenson is a full-service department that has many years of experience representing clients in matters of divorce, custody, support, domestic violence, prenuptial agreements, grandparent visitation, and other family law issues. We are here to help.