concurring in part and dissenting in part.
Today this Court announces two new rules of law concerning the interpretation and application of the Divorce Act of 1971, as *97amended, N.J.S.A. 2A:34-1, et seq.\ (1) in the exercise of their statutory discretion in determining an alimony award, trial courts are now barred from considering marital fault save for “two narrow instances: cases in which the fault has affected the parties’ economic life and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice,” ante, 183 N.J. at 72, 869 A2d at 905 and (2) in the trial court’s exercise of statutory discretion in awarding counsel fees, “marital fault is irrelevant to a counsel fee award.” Ibid. Preliminarily, I address these issues in that order.
My main disagreement with the majority stems from its conclusion that trial courts are to be restricted in their computation of alimony awards solely to the types of fault the majority finds abhorrent. According to the majority, this result is compelled by what the majority views as its obligation to “reaffirm Kinsella’s [Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556 (1997)] approach.” Ante, 183 N.J. at 88, 869 A.2d at 915. I simply cannot read Kinsella’s dicta in the same manner or with the same import the majority does. I also cannot ignore the plain reading of a statute, disregard completely its clear legislative history and jettison over thirty years of our own jurisprudence. Further, this Court is not the proper forum for the relief sought, as it should be sought from the Legislature. Finally, even assuming that the majority’s legal analysis is correct, that the majority’s conclusion is consonant with the statute and its legislative and decisional history, and that this branch of government is the proper forum for this decision, the construct tendered by the majority is unworkable.
As to the latter issue, while I concur with the majority’s conclusion that “marital fault is irrelevant to a counsel fee award,” I do so for reasons different from those espoused by the majority. In my view, the only factors relevant to a counsel fee award are those specifically enumerated in the Divorce Act of 1971. I also concur with the majority’s conclusion that it is unclear whether the *98time for the filing of an affidavit of services had passed and, hence, a remand on that issue is appropriate.
I.
The majority’s recitation of the facts fairly presents the context for this matter. I highlight only the fact that plaintiff and defendant financed their early-retirement marital lifestyle from over $2,000,000 in gifts plaintiffs father gave solely to her over time and which, at her father’s direction, plaintiff retained as her separately titled property.
II.
I address first the limited issue on which I concur in the majority’s conclusions: that marital fault is irrelevant to an award of counsel fees. In my view, however, that conclusion does not end the inquiry. The trial court’s obligation to consider an award of counsel fees is rooted in the Divorce Act of 1971 itself:
Whenever any other application is made to a court which includes an application for pendente lite or final award of counsel fees, the court shall determine the appropriate award for counsel fees, if any, at the same time that a decision is rendered on the other issue then before the court and shall consider the factors set forth in the couit rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.
[N.J.S.A 2A:34-23 (emphasis supplied).]
Under the enabling statute, then, the trial court must consider three separate factors when determining the award, if any, of counsel fees: “the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party.” Ibid. Those shall be examined separately.
Rule 4:42-9(b) and (c) specifically, clearly, and unequivocally set forth the proof requirements on any application for counsel fees. There is nothing permissive about the dictates of Rule 4:42-9; its command is mandatory and compliance with its terms is not optional. When, as here, the matter in issue is a “family action,”
*99Rule 5:l-2(a) imposes additional requirements on an application for counsel fees.
On the record before us, it appears, at first blush, that defendant eschewed compliance with both Rule 4:42-9 and Rule 5:3-5(c). However, because we are unable to ascertain the reason for that failure of proof, a limited remand is appropriate. Nevertheless, this remand should not be an invitation for a nunc pro tunc submission of an affidavit of services; if an affidavit of services should have been filed and was not, it should not be considered now and nothing in the majority’s opinion should be read so as to authorize any untimely affidavit of services.
In sum, while I agree that the concept of marital fault is irrelevant to an award of counsel fees, my concurrence stems from my view of what the Divorce Act of 1971 and our Rules of Court specifically enumerate as relevant to a counsel fee award, and not on any notion of forgiving a party’s unexplained failure to bear its clearly established burden of proof. Those principles, and those principles alone, should govern the remand on counsel fees.
III.
This brings me to the core issue on appeal: can marital fault be considered by the trial court in an alimony award and, if so, to what extent. As noted earlier, the majority concludes that trial courts are barred from considering marital fault save for “two narrow instances: cases in which the fault has affected the parties’ economic life and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.” Ante, 183 N.J. at 72, 869 A.2d at 905. I respectfully disagree.
A.
As the majority properly points out, the interrelationship between marital fault and alimony is well engrained in our system. From its adoption, the Divorce Act of 1971 specifically provided *100that, “[i]n all actions for divorce other than those where judgment is granted solely on the ground of separation the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.” N.J.S.A. 2A:34-23g. The Divorce Act of 1971 enumerates the grounds for divorce; having begun with the 1907 grounds for divorce of adultery and desertion, L. 1907, c. 216, § 2, p. 474, to which extreme cruelty was added in 1923, L. 1923, c. 187, § 1, p. 494, they now also include separation, voluntarily induced drug or alcohol addiction, institutionalization for mental illness for more than twenty-four consecutive months, incarceration for eighteen or more consecutive months, and non-consensual voluntary deviant sexual conduct. L. 1971, c. 217, § 11, p. 1075 (codified at N.J.S.A. 2A:34-2). Eliminating separation from the list, then, means that, under the plain language of the Divorce Act of 1971, “the court may consider also the proofs made in establishing [adultery, desertion, extreme cruelty, voluntarily induced drug or alcohol addiction, institutionalization for mental illness for more than twenty-four consecutive months, incarceration for eighteen or more consecutive months, and non-consensual voluntary deviant sexual conduct] in determining an amount of alimony or maintenance that is fit, reasonable and just.” N.J.S.A 2A:34-23.
B.
This commonsense reading of the Divorce Act of 1971 is buttressed by its legislative history. During the late 1960’s, New Jersey considered whether to update its then-dated divorce laws, some of which harkened back to 1907 and had most recently been amended in 1948. As a result, in 1967, New Jersey legislatively created the New Jersey Divorce Law Study Commission. L. 1967, c. 57, as amended L. 1968, c. 170 and L. 1969, c. 25. The statutory duty of the Divorce Law Study Commission was
to study and review the statutes and court decisions concerning divorce and nullity of marriage and related matters, particularly as contained in Title 2A of the New Jersey Statutes as amended and supplemented and other legislative enactments, *101relating to the said subject matter and to study the advisability and practicality of creating a family law court.
[L. 1967, c. 57, § 4],
See also Public Hearing before the New Jersey Divorce Law Study Commission, at 1 (Jan. 30, 1969) (1969 Hearing) (The purpose of the Divorce Study Commission is to engage in “the study and review of the statutes and court decisions concerning divorce, annulity [sic] of marriage and related matters.”). The charge of the Divorce Law Study Commission was clear:
The commission may meet and hold hearings at such place or places as it shall designate during the sessions or recesses of the Legislature and shall report its findings to the governor and the Legislature accompanying the same with any legislative bills which it may desire to recommend for adoption by the Legislature on or before January 13,1970, or as soon thereafter as may be possible.
[L. 1969, c. 25, § 1 (amending L. 1967, c. 57, § 8 and L. 1968, c. 170, § 1).]
Whether marital fault should be retained as an element of alimony was a matter of debate before the Divorce Law Study Commission, with strong opposition advanced against retaining marital fault as part of the alimony formula. See 1969 Hearing, at 71 (“[T]he alimony concept should be retained, but it should not be awarded on the basis of fault.”); id. at 26A (“I would try to eradicate the fault element because this is what perverts and distorts alimony in many states.”).
In its final report, the Divorce Law Study Commission struck a compromise. It started from the premise that “fault, where so asserted as a ground for relief [for divorce], will be a proper consideration for the judiciary in dealing with alimony and support,” New Jersey Divorce Law Study Commission, Final Report to the Governor and the Legislature, at 7 (May 11, 1970) (Final Report), and concluded with the aspirational thought that “perhaps the penalty should fit the ‘crime,’ i.e., the flagrant offender, whether plaintiff or defendant (husband or wife), may be subject to equitable principles when alimony, custody and property rights are determined.” Id. at 8. That conclusion, however, was couched in terms of what the Commission thought the Legislature — and not the judiciary — should consider in connection with future changes to the Divorce Law. Ibid.
*102The compromise reached by the Divorce Law Study Commission was straightforward and fairly grounded on the Divorce Law Study Commission’s recommendation that a new “no fault” ground for divorce — separation—be adopted as part of New Jersey’s legal landscape. (“This revision proposes that 2A:34-23 be amended to permit the fault of the parties to be considered in awarding alimony but that such element should be excluded when the divorce is based upon the new separation ground.” Id. at 64-65.) The Final Report’s conclusions on this matter are worthy of review at length:
The last sentence of the proposed amendment permits the court to deny alimony to a spouse who is guilty of one of the fault grounds for divorce. As long as fault grounds are retained, it is traditional logic that fault also should affect judicial discretion in awarding alimony. After further study a new Commission may conclude that fault has no place in either the provision of grounds for divorce or in datemining alimony but for the time being the substance of existing law is retained.
Where both parties make out a ground for divorce the court ma/y deny alimony to either party. There is no automatic bar, as in New York, nor disregard of matrimonial fault, as under the new California law. Thus, the adulterous, deserting, or extremely cruel wife may be deprived of alimony at the court’s discretion. Fault is irrelevant, however, where the non-fault ground of separation is the ground for divorce, and in such eases the economic factor and the duration of the marriage will be the determinants as to alimony.
The objective of the proposed amendment is to adapt section 2A:3í-23 to the new and revised grounds for divorce with the least possible amount of disruption pending a full scale study by a new Commission of the present law of alimony and matrimonial property. The major change in policy is the granting of discretion to award alimony where both parties make out a cause for divorce. In other words, giving cause for divorce would not be an automatic bar to alimony where there was actual need and ability to pay, but the court may consider it in the exercise of its judicial discretion. In the case of the non-fault separation ground, it appears to be logically consistent to make fault irrelevant both as to the ground and the possible grant of alimony.
[Id. at 94-95 (emphasis in the original and supplied).]
The Divorce Law Study Commission thus expressed a well-founded confidence in our trial courts, and therefore commended marital fault as a factor to be considered by the trial court in the exercise of its discretion in determining alimony. The Divorce Law Study Commission emphasized that any future consideration of whether fault plays a part in an alimony award was reserved to *103the Legislature, either directly or by again creating a Commission to examine the question.
When the Legislature considered the work and recommendations of the Divorce Law Study Commission, it also heard from individual members of the Divorce Law Study Commission. Among the matters on which the Legislature focused was the retention of fault as a factor in alimony awards. In response to a question from the Chairman of the Assembly Judiciary Committee, the then-Chairman of the Divorce Law Study Commission made clear that:
[t]he three factors that will be considered [in determining alimony] in all cases are: actual need of both parties, ability to pay or resources of both parties, and the duration of the marriage. Where fault is introduced under one of the traditional grounds, whether affirmatively or by way of defense, that will be the fourth factor to be considered by the court. That was a policy judgment by the Commission, espoused very vigorously by Senator Beadleston that the Commission ultimately adopt it, that under certain circumstances fault should appropriately be considered. [Statement of Assemblyman Richard W. DeKorte, Chairman of the Divorce Law Study Commission, Public Hearing before the New Jersey Legislature, Assembly Judiciary Committee, on Assembly Bill No. 1100, at 30A-31A (Oct. 30, 1970).]
Based on the recommendations of the Divorce Law Study Commission, the Legislature adopted N.J.S.A. 2A:34-23g which, as noted earlier, now as then provides that “[i]n all actions for divorce other than those where judgment is granted solely on the ground of separation [that is to say, either adultery, desertion, extreme cruelty, voluntarily induced drug or alcohol addiction, institutionalization for mental illness for more than twenty-four consecutive months, incarceration for eighteen or more consecutive months, and non-eonsensual voluntary deviant sexual conduct] the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just.” N.J.S.A. 2A:34-23g. It is most telling that, when it enacted N.J.S.A. 2A:34-23g, the Legislature adopted — word for word — the language submitted by the Divorce Law Study Commission. Compare N.J.S.A. 2A:34-23g with Final Report, at 93, 112. Since then, and although the Legislature has revisited the alimony and support provisions of the Divorce Act of 1971 five different times since its enactment — in 1980, 1983, 1988, *1041997 and 1999 — the Legislature chose not to amend the language now codified at N.J.S.A. 2A:34-23g.
It is on this rather plain expression of legislative intent that today we engraft a new — and, in my view, wholly unwarranted— limitation, requiring that N.J.S.A. 2A:34-23g now be read as follows:
In all actions for divorce where judgment is granted on the fault ground of adultery, desertion, extreme cruelty, voluntarily induced drug or alcohol addiction, institutionalization for mental illness for more than 24 consecutive months, incarceration for 18 or more consecutive months, and non-consensual voluntary deviant sexual conduct, but not separation, the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just, but only to the extent that such fault ground either (1) affected the parties’ economic life or (2) so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice.
[added language emphasized.]
As the preceding analysis demonstrates, this new limitation is unfounded in either the enabling statute or in its legislative history. It is similarly unfounded in the over thirty years of jurisprudence emanating from the Divorce Act of 1971.
C.
June 5, 1974 marked the first day we reviewed the Divorce Act of 1971; we did so in a quartet of cases handed down the same day and we addressed the scope of fault in determining alimony in three of these four cases.3 In the first of these, Scalingi v. Scalingi, 65 N.J. 180, 320 A.2d 475 (1974) (per curiam), we sustained an alimony award against a claim that it was excessive in light of the equitable distribution made. Rejecting that argument, we stated:
*105We are dealing with the breakup of a 35-year marriage with defendant found to be the marital wrongdoer. Plaintiff, now 60 years of age, no longer has the comforts of the marital home which had been provided by defendant. Considering these factors as well as the respective incomes of the parties, it has not been shown that the order for support, as presently applied, is arbitrary or unreasonable.
[Id. at 184, 320 A.2d 475 (citation omitted).]
Clearly, then, at our very first opportunity to do so, we endorsed the application of marital fault to an award of alimony under the Divorce Act of 1971.
We next decided Chalmers v. Chalmers, 65 N.J. 186, 193-94, 320 A.2d 478 (1974), where we distinguished between alimony and equitable distribution under the Divorce Act of 1971, noting that “[o]ur amended statute ... mentions the grounds for a divorce (other than separation) as a consideration in determining an amount of alimony or maintenance[.]” In Chalmers, we also noted that the Final Report states that “fault where so stated as a ground for relief, will be a proper consideration for the judiciary in dealing with alimony and support.” Id. at 194 n. 4, 320 A.2d 478.
In the last relevant case of the original quartet, Painter v. Painter, 65 N.J. 196, 205, 320 A.2d 484 (1974) (citing N.J.S.A. 2A:34-23), we made clear that
[a]limony may be awarded to either spouse. Except where the judgment for divorce is granted on the no-fault ground of separation, the court may, in awarding alimony, consider the proofs submitted in support of the ground upon which the judgment of divorce is made to rest.
This brings us quickly to Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556 (1997). As even the majority acknowledges, Kinsella is not an alimony case, but one dealing with
whether the psychologist-patient privilege may be invoked by a patient to prevent discovery of psychotherapeutic treatment records in the context of three aspects of matrimonial litigation: a marital tort claim against the patient, an extreme cruelty claim for divorce by the patient, and a child custody dispute between the patient and his spouse.
[Id. at 285, 696 A.2d 556.]
In that context, and only in the way of dicta, Kinsella states that “the focus of the decision regarding alimony is generally on the financial circumstances of the parties[,]” and that “[o]ur perception *106is that, in today’s practice, marital fault rarely enters into the calculus of an alimony award.” Id. at 314-15, 696 A.2d 556.
The majority relies on Kinsella as the starting point for its analysis. However, any reliance on Kinsella as the basis for today’s limitation on the role of fault in an alimony award is misplaced for at least two separate reasons. First, Kinsella itself introduces its discussion on alimony with the overriding principle that, “[ajccording to the statute, except where the judgment is granted solely on the ground of separation, proofs made in establishing the grounds for divorce may be considered ‘in determining an amount of alimony or maintenance that is fit, reasonable and just.’ ” Id. at 314, 696 A2d 556. Thus, anything else Kinsella describes concerning alimony must be viewed through that prism.
Second, and perhaps more importantly, Kinsella admits — much as the majority also perforce admits — that its sense that “marital fault rarely enters into the calculus of an alimony award” is entirely anecdotal, thus underscoring the need foreseen by the Divorce Law Study Commission over thirty years ago: that any future consideration of whether fault plays a part in an alimony award is properly reserved to the Legislature, either directly or by again creating a commission to study the matter, conduct public hearings and make recommendations to the Legislature. Final Report, at 95 (“The objective of the proposed amendment is to adapt section 2A:34-23 to the new and revised grounds for divorce with the least possible amount of disruption pending a full scale study by a new Commission of the present law of alimony and matrimonial property.”). At oral argument, even defendant’s counsel readily conceded that this is a matter that must be addressed by the Legislature. With the party advancing the proposition here having made that concession, the proper path is clear: relief, if any, lies in the legislative, and not in the judicial, branch.
Common sense compels agreement with Kinsella’s general observation that, “[i]n most cases, the practical consequences of succeeding in a divorce action on fault-based grounds, as opposed *107to separation, are minimal.” Kinsella v. Kinsella, supra, 150 N.J. at 313, 696 A.2d 556. However, one cannot pick and choose among Kinsella’s dicta, because, as Kinsella readily admits, the Divorce Act of 1971 retains a practical and meaningful difference between fault and no-fault divorces: the relevance of fault to alimony. Id. at 314, 696 A.2d 556. More to the point, as an appellate court that consistently insists that its rulings must be firmly grounded in the record, our reliance on what is admittedly anecdotal is unjustified.
Since 1977, no published decision of this Court has seen the need to address squarely the effect of N.J.S.A. 2A:34-23g on the calculation of alimony.4 That absence of case law suggests strongly that everyone readily understands what the Legislature intended when it gave trial courts the discretion, but not the obligation, to consider fault proven as part of an alimony determination. In that regard, the underpinnings of the majority’s analysis — a lack of clarity as to “the Legislature’s intent in respect of how a court is to calculate the impact of fault on an alimony award,” ante, 183 N.J. at 84, 869 A.2d at 913 that requires a “search for a principled approach to the relationship between fault and alimony consistent with legislative intent,” ante, 183 N.J. at 89, 869 A.2d at 915 is far too slender a reed upon which to rest the jettisoning of now well-settled law.
The statutory standard embodied in N.J.S.A. 2A:34-23g, the exercise of judicial discretion, is clear and requires no additional explanation. Our trial courts have applied this standard in a manner consistent with basic principles of justice and equity, and there is no wrong here that requires a remedy. Plaintiffs counsel, at oral argument, said it best: “If it’s not broken, don’t fix it.”
D.
My objection to our new rule of law restricting the role of fault in the calculus of an alimony award is not assuaged even if I were *108to assume either that the majority’s legal analysis is correct, or that the majority’s conclusion is consonant with the statute and its legislative and decisional history, or that this branch of government is the proper forum for this decision. As structured, the construct tendered by the majority is unworkable.
The paradigm we adopt today undoubtedly will generate its own flood of litigation because it defies definition. As a result, it takes little imagination to foresee the unending number of claims the standard adopted today — that a party’s fault “affected the parties’ economic life” — will bring. Determining just what “affected the parties’ economic life” means and, when proven, to what degree the parties’ economic life must be affected before that fault can be considered as part of an alimony calculus will add a highly combustible additive to the already overly-charged atmosphere of matrimonial litigation. The imprecision and resulting confusion of this new standard is brought into sharp focus when it is gauged against the standard it seeks to supplant, and a standard in which our trial courts are well versed: the exercise of discretion.
Similarly, determining what constitutes “fault [that] so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice” is too subjective a standard, converting the analysis into a simple question of whose personal value system will prevail. It is not a stretch to conclude that having your spouse engage in sexual relations with your friend and yet still demand that you support his lifestyle after divorce at the rate of over $150,000 per year “confoundfs] notions of simple justice.” If that is not what this standard means, then it is meaningless. If, on the other hand, that is precisely what this new standard means, then we have created a new and unproven process to achieve a result already reached by tried-and-true methods.
IV.
After thirty uninterrupted years of consistent jurisprudence, we are called on to discern the Legislature’s intent when it stated, in *109rather plain words, that “the court may consider also the proofs made in establishing such ground in determining an amount of alimony or maintenance that is fit, reasonable and just” in determining alimony in all fault-based actions for divorce. N.J.S.A 2A:34-23g. The Legislature could not have been clearer. To claim that “the statutory provision permitting consideration of ‘the proofs made’ in a fault-based divorce does not specify how judges are to weigh proof of fault in establishing alimony,” ante, 183 N.J. at 89, 869 A.2d at 915 misses the point persuasively made by the Legislature: the effect of fault on the calculus of alimony is entrusted to the sound discretion of the trial court. The Legislature commanded that, in the exercise of discretion, the trial court should consider all fault grounds proved, and not just the limited categories we ratify today. Whether, in the exercise of that discretion, trial courts give greater or lesser weight to one aspect of fault over another is precisely what the exercise of discretion is all about. Given the clear statutory intent, it is improper to judicially codify legislatively-rejected limits on that exercise of discretion.
In the final analysis, I would not jettison that which has served us well for over thirty years. If there is a groundswell of opposition to the terms of the Divorce Act of 1971 or the manner in which it has been applied, it has certainly escaped everyone’s attention — including that of the practitioners who toil in the area daily. By the same token, in light of both the clear message of the drafters of the Divorce Act of 1971, the clear language of the Divorce Act itself, and over thirty years of consistent judicial interpretation by this Court, the Divorce Act should be read to mean precisely what it says. Defendant’s complaint should not be addressed to this Court, but to the forum where it properly belongs: the Legislature. We should analyze this case under the traditional abuse of discretion standard and determine that, under the circumstances, the trial court did not abuse its discretion. Anything more exceeds our proper role.
For the foregoing reasons, I respectfully dissent.
*110For reversal and remandment — Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE — 6.
For concurrence in part; dissenting in part — Justice RIVERA-SOTO — 1.
The fourth case in this quartet, Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496 (1974), does not consider the issue of fault as a factor in determining alimony, as it deals almost exclusively with equitable distribution. However, it does contain a discussion of the relationship between equitable distribution and alimony that, while not directly on point, assists in informing the discussion here. Id. at 228-30, 320 A.2d 496.
To the extent any Appellate Division decision can be read to the contrary, I would specifically disapprove it.