Perhaps its the stress of family life during the holiday season, but many clients of late have claimed that the supporting spouse has stopped supporting the family as he did during the marriage. The reasons are varied, but often of the same cloth – i.e., the payor spouse claims that he is now earning less money than before, the payor spouse claims that the payee spouse is overspending (despite there being no change from the marital lifestyle) and believes that the supported spouse should get a job after having never worked during the marriage, or, most egregiously, that they simply believe that the marriage is over and a support obligation is over unless a Court directs otherwise.
These situations often leave the supported spouse afraid and wondering how they are going to meet everyday expenses for herself and the kids, while also litigating a divorce matter against their financially superior spouse. Often this is part of the supporting spouse’s underlying strategy – economic coercion, i.e., essentially trying to force the supported spouse to settle under his terms without going through a protracted litigation.
It is those hardball tactics, however, that often create the protracted litigation sought to be avoided. New Jersey’s support statutes and case law dictate that the "status quo" lived during the marriage is to be maintained during the divorce process. This does not only mean that the supporting spouse will continue to contribute as he did during the marriage. Insurances and beneficiaries on assets will be maintained, and commonly, restraints on assets will be imposed to prevent a sudden transfer or spending of money. In addition, the supported spouse will often need counsel fees to litigate on an "even playing field" with the supporting spouse to avoid the coercive situation I described above.
Case Information Statements play a critical role in resolving these situations, whether by amicable settlement or as part of what is called a motion for pendente lite support (support during the proceedings). The Case Information Statement or "CIS" must be filed by each party early on after the filing of a Complaint for Divorce. It contains a section known as Part D, under which there are three Schedules – A, B and C. These schedules require the party to fill in all expenses on a monthly basis as to the marital lifestyle, as well as the person’s current lifestyle, including fixed costs (such as the mortgage and utilities) and miscellaneous expenses that come as part of everyday life - even down to hair care and dry cleaning.
The task of completing the CIS can be daunting, but it is a pivotal component to resolving any pendente lite support issues because it aids in demonstrating how much support you will need as the supported spouse during the divorce proceedings (as well as assist in litigating long-term financial issues beyond the proceeding). Inevitably, even though the CIS is signed under oath, the parties will almost always have contrasting lifestyle expenses, often with the supported spouse having a higher lifestyle than that set forth by the supporting spouse. From there, whether the issues will resolve amicably without having to file a motion depends on the parties, the lawyers, and a given set of facts.
If the matter does not resolve amicably, the supported spouse is generally left with no choice but to file a motion to have a court address and resolve the issues. It can safely be said that such a motion is often the most important one that will be filed in a given case. In the client’s eyes, filing a motion is a daunting task, as the client has to evaluate whether they want to proceed in such a fashion, spend the money to have counsel prepare and argue the motion – all without knowing what she will end up once the matter is in the hands of a trial judge. Plus, the other spouse will almost always not merely oppose the motion, but file for relief of his own, such as a set parenting time schedule. The trial judge will read certifications from each party containing various allegations and exhibits that may be difficult for the parties to see on paper as the life stories has been laid bare for the court. It is then up to the court, after hearing oral argument from the lawyers, to make findings of fact and decisions after oral argument.
What will the ultimate result be? Your legal counsel will hopefully have advised you in advance as to what may or may not happen. Whether the trial judge believes your certified statements as to the marital lifestyle and your needs (as well as those of the children) to continue maintaining the "status quo" during the divorce proceeding cannot be predicted.
As this is one of the most important, if not the most important motion filed during the proceeding, a client must ensure that they have retained counsel capable of understanding the issues, what to ask for, how to present your case, and, oftentimes, demonstrating an empathy for your position. The mechanisms in place that I have described above exist to protect the supported spouse and eliminate or reduce the fear experienced when litigating in what may feel like a difficult position from the outset.