Pre-Divorce Monthly Support: Money is often the focal point of marital distress. A tipping point is reached when one or both parties scck legal counsel. ‘The presenting problem may simply be a lack of sufficient income to meet current expenses.
Where both partners are acting in good faith, crisis management can focus on common sense solutions. A reasonable monthly budget going forward can be crafted. New Jersey family attorneys utilize a form utilized by all family judges: The “New Jersey family Case Information Statement.” The form can be found on line in a pdf format at the NJ Judiciary web site. The short-hand term is CIS statements. Two pages of this 10 page form sets out line items for monthly “shelter” and “transportation” expenses (fixed and “inelastic” expenses) not easily modified. The second page sets out line items for food, restaurants, clothing, credit card payments, and other somewhat discretionary expenses.
Can monthly living expenses be reduced? Can monthly income be increased? Where partners are being rational, attorney intervention can be limited.
The need for attorneys and judges arises when one or both partners are not acting rationally. Perhaps the family is vastly over-spending; perhaps the primary income earner is exercising “coercive control” over the other partner by intentionally withholding a fair level of support.
[a] Prior to September 1971 when “no fault divorce” was signed into law, the court’s focus was ferreting out the person causing the problems. Complaints for divorce elaborately set out instances of “extreme cruelty” committed by the other side as the basis for granting monthly support, or limiting the amount ordered by the Court. This served to emotionally inflame the dispute, making eventual resolution of issues more difficult.
[b] Post-1971 the inquiry shifted to how best to stabilize financial circumstances over the first six to twelve months while divorce was pending - referred to in NJ as the pendente lite (the pending litigation) phase of the case. Counsel for the partics help prepare CIS statements setting out family needs.
The Court has extraordinary power to intervene. To assure periodic support is provided to fund monthly living expenses, wages can be garnished - with the court’s order directed to an employer to withhold a portion of earned income, to be paid thru the Court and provided to the supported partner.
If the family residence will be lost thru foreclosure unless sold, the court has the power to direct the home be listed and sold.
The take away from the above is based on common sense: To the extent possible partners should construct and fund their own temporary pendente lite budgets, with each partner contributing all or a portion of their pay checks to a new joint checking account, used to pay bills. Good practice dictates this should not just be an oral or written agreement, it should be memorialized in a “Consent Order” that the judge assigned to the case will enter and sign. The court does not require a filing fee to enter the consent order drafted by counsel or the parties.
The Court’s goal when dealing with temporary support issues is to create a period of relative calm so that the focus can shift to child-related issues and long-term post-divorce issues.
[Note: Consent orders also resolve child-related issues involving parenting schedules, extra-curricular activities, medical and educational concerns while the case is pending (pendente lite) as well as long term. These issues will be set out in a separate blog.]
Case law and statutory law require that trial judges intervene so there is room for a fair and equitable result at the end of the case, rather than be uninvolved observers to financial family ruin. That said, court involvement increases legal costs. Over time as legal fees increase, and court’s are unable to reach cases for trial, pressure increases on litigants to be fair and reasonable; with the prospect that if one partner is found to be acting in bad faith, the Court may assess counsel fees to be paid by such recalcitrant litigant to the non-offending party.
In a pendente lite application, the court may be asked to resolve innumerable permutations to the outline above where as example there is an alcohol or drug addiction; where one partner has intentionally lost employment to position for divorce; or where a parent is intentionally poisoning the children’s feelings towards the other parent. Family judges are constantly confronted by such circumstances.
Barring unusual circumstances the Court will attempt to re-establish or maintain the financial status quo while the case is pending before the Court. In an unusually candid and revealing statement, the Honorable Mary Catherine Culf, JAD in the case of Mallamo v. Mallamo, 280 N.J. Super. 8 (App.Div.1995) acknowledged the limitation of pendente lite decisions:
The interpretation and application of N.J.S.A. 2A:17-56.23a must account for the vagaries of pendente lite matrimonial practice. In many instances the motion judge is presented reams of conflicting and, at times, incomplete information concerning the income, assets and lifestyles of the litigants.
The orders are entered largely based upon a review of the submitted papers supplemented by oral argument. Absent agreement between the parties, however, a judge will not receive a reasonably complete picture of the financial status of the parties until a full trial is conducted. Only then can the judge evaluate the evidence, oral and documentary, and weigh the credibility of the parties. Only then can the judge determine whether the supporting spouse has the economic means represented by the other spouse or in the case of declining income has suffered legitimate economic reversal or has been afflicted with a temporary case of diminished resources occasioned by a divorce.
However, and here is “the rub”, only 2% - 3% of divorce cases are tried to completion. There are few full divorce trials in New Jersey. Therefore in your case, no matter how much money is devoted to legal fees, the trial judge assigned cannot be relied upon to make a definitive decision. Currently most cases resolve by eventual agreement of the parties, or via mediation or arbitration. In some cases parties just give up when they run out of money and capitulate to the demands of the other party. Prudence demands that you look to alternate interventions. (To be discussed in a subsequent blog)
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