A recent decision by the New Jersey Superior Court (Ocean County) dispels a common misconception in how parties argue (and judges decide) pendente lite (while the divorce is pending) applications for alimony. This decision enunciates a standard with which pendent lite alimony applications could be adjudicated in light of the 2014 amendments to New Jersey’s alimony statute.
In Malek v. Malek, the parties were married in 2012 and had two children prior to their respective filings for divorce in 2016. The husband, a teacher, earned approximately $90,000 annually while the wife, a hairdresser, has imputed income of approximately $20,000 a year. Due to her limited financial resources, the wife moved into her mother’s home following the parties’ separation and filed a pendente lite application for alimony to secure financial assistance from her husband during the pendency of the litigation. The trial court seized the opportunity to expand on the limited case law on the subject, providing guidance on how such applications should be adjudicated in light of the 2014 amendments to New Jersey’s alimony statute, N.J.S.A. 2A:34-23.
The court opined that during a lengthy pre-trial period in divorce actions, economic chaos may result if there is no interim support agreement or order defining the financial rights and obligations of the parties. The need for an interim arrangement is apparent, but it can be difficult for a court to make preliminary decisions, especially at the infancy of litigation, where discovery has not been completed and the financial information before the court is limited or incomplete. Because a court’s decision depends largely upon a review of limited available evidence, a pendente lite support order is entered without prejudice to further review and (possibly retroactive) modification.
Setting forth how such applications have been historically decided, the court noted there often appeared to be a dominant, and sometimes exclusive, focus on maintaining the dependent spouse’s prior standard of living during pendente lite litigation, with comparatively less focus on the financial needs of the supporting party. The court admonished such a one-sided approach as failing to take the equitable needs of both parties into consideration under the statutory framework for determining alimony, both pre- and post-2014 amendments to New Jersey’s alimony statute.
Even before the enactment of the 2014 amendments, the court held “marital lifestyle” or “status quo” of one or both parties was never appropriately the sole and exclusive factor in the alimony analysis because the statutory framework provided thirteen factors to consider in determining alimony:
(1) The actual need and ability of the parties to pay;
(2) The duration of the marriage or civil union;
(3) The age, physical and emotional health of the parties;
(4) The standard of living established during the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, with neither party having a greater entitlement to that standard of living than the other;
(5) The earning capacities, educational levels, vocational skills, and employability of the parties;
(6) The length of absence from the job market of the party seeking maintenance;
(7) The parental responsibilities for the children;
(8) The time and expense necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, the availability of the training and employment, and the opportunity for future acquisitions of capital assets and income;
(9) The history of the financial or non-financial contributions to the marriage or civil union by each party, including contributions to the care and education of the children and interruption of personal careers or educational opportunities;
(10) The equitable distribution of property ordered and any payouts on equitable distribution, directly or indirectly, out of current income, to the extent this consideration is reasonable, just and fair;
(11) The income available to either party through investment of any assets held by that party;
(12) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable payment; and
(13) Any other factors which the court may deem relevant.
In 2014, however, the Legislature amended the alimony statute, clarifying and supporting the concept of a court considering all applicable statutory criteria under N.J.S.A. 2A:34-23 in an alimony analysis, rather than mostly or only on the alleged marital lifestyle and needs of the supported spouse to maintain the prior “status quo.” The court held that several amendments help diffuse the misconception that: “(a) maintaining the prior standard of living is the paramount consideration in a pendente lite alimony case, and/or that (b) only the supported spouse is entitled to maintain the marital lifestyle, either on a pendente lite basis or otherwise.”
First, the amended statute directs family courts to consider, among other factors, the practical impact of the parties’ need for separate residences on the ability of both parties to maintain the marital standard of living. Second, the amended statute expressly provides that neither party has a greater entitlement to that standard of living than the other. Third, the statute declares that all factors should be weighed equally unless equity requires otherwise. Fourth, the statute now states that pendente lite support should be considered by the court when rendering a final alimony award.
Turning to the practical implications of separation on the marital standard of living, the court astutely commented that “the blunt economic reality is that separation and divorce often render impossible the ability of either party to financially maintain the prior marital lifestyle, or the same standard of living to which they formerly became ‘accustomed’ during the marriage [because]… [a]s a matter of simple mathematics, there may not be enough money to support two separate households at the same financial level or lifestyle that they could jointly afford, and became accustomed to living, while they were pooling their incomes and benefitting from the economies of shared living expenses.” The court prudently noted that litigation costs associated with the divorce proceedings will often exacerbate the difficulty in maintaining the status quo once living separate and apart.
Offering a pragmatic solution, the court held that a mutually equitable resolution will often require both parties to adapt to interim lifestyles which are financially lower than that enjoyed during the marriage. Acknowledging that there is no exact formula to shape relief, the court held that the determination will depend on the specific facts of the case, application of the statutory factors and the discretion of a court to shape equitable relief on a pendente lite basis. The court emphasized that fair relief must not, and often may not, approach equalization (i.e., 50/50 sharing of combined income).
The court addressed specific facts implicated in Malek, which provides guidance to any divorcing party who “voluntarily” downgrades his or her lifestyle during divorce proceedings. The wife in Malek moved in with her mother during the litigation. The husband sought to use this fact as justification for not providing support, alleging that the wife had no roof expenses and therefore no need for pendente lite alimony. The court rejected this argument, highlighting the irony of denying alimony because limited financial circumstances essentially required the wife to move back in with her mother in the first place. Moreover, the court opined that the mother’s willingness to open her home to her daughter was most likely intended to economically benefit her daughter, not her soon-to-be ex-son-in-law.
Conversely, the court reasoned that it would be inappropriate to impoverish the husband with an unreasonably top-sided alimony award which maintained the wife’s marital standard of living. The court held that “the economic pain very often must be fairly and equitably shared by both parties, and not just shouldered by the supporting or supported spouse.”
Applying all of the statutory factors to the wife’s application, the court awarded pendente lite relief which, after taxes, resulted in the husband being left with approximately sixty percent of the combined net incomes and the wife receiving approximately forty percent of same plus pendente lite child support.
While this decision stems from a trial court opinion and is not considered binding, it is suspected that it is only a matter of time before the Appellate Division weighs in and provides their guidance on interpretations of the amended alimony statute. Until then, Malek provides some needed guidance for litigants and practitioners alike.