You have one household barely scraping by. You have two incomes, but the bills still pile up. From month to month, you pinch pennies, cut coupons and budget.
Now take that household, double the expenses, and cut the income in half.

Good luck.

This situation is something that millions of people face each day. One spouse leaves the residence, seeks a divorce and *surprise* you also need to help support his/her living expenses during the pendency of the matter. But how are you going to do that when your income has just been slashed and your expenses just doubled?

29871157 - divorce decree court dealing with division of property and custody rights of kid

Judge Jones of Ocean County recently addressed what happens when one spouse requests support of the other during the divorce proceedings, or on a pendente lite basis, under the newly enacted statutory amendments to New Jersey’s alimony statute in the recent case of Malik v. Malik.

Historically, in New Jersey, judges have awarded pendente lite support to preserve the status quo, and maintain the parties in the positions they were in prior to the litigation. This typically involves payment of the marital bills and expenses necessary to maintain the dependent spouse at the standard of living enjoyed during the course of the marriage.

The logic of these awards is clear. As Judge Jones put it in Malik: “…if there is no interim support agreement or order defining the financial rights and obligations of the parties, economic chaos may result…the purpose of a pendente lite support application is to help financially bridge the gap in time between the beginning and end (or other interim point in the divorce litigation), in an orderly fashion…In fact, a pendente lite order is often the only way to provide the means for a supported spouse to survive at the start of an action.”

Here is a general run-down of how pendente lite applications are heard and decided:

• A supported spouse files a pendente lite motion at the start or the early stages of the divorce process, asking the court to make preliminary decisions about interim support. This is typically prior to the close or perhaps even the start of the period of discovery – meaning, that the Court does not yet have complete information as to the parties’ finances.

• The motion is generally heard on the Family Court’s motion calendar.

• In deciding the application, the Court rarely takes direct oral testimony of the parties and instead is authorized to make a determination based upon affidavits of the parties.

• Any pendente lite order is entered without prejudice, meaning that it can be retroactively modified, upward or downward at the trial of trial, in the court’s discretion. The court can also modify the award prior to trial upon a showing of change circumstances.

Prior to the enactment of the new alimony law, N.J.S.A. 2A:34-23, the focus of these applications was typically the marital lifestyle, i.e. the status quo of the marriage, almost to the exclusion of all other factors.

In 2014, however, the legislature enacted amendments to the statue, which now clarify the concept of considering all of the factors in the alimony analysis rather than just marital lifestyle. In fact, 4 separate directives in the statute make that concept more clear:

(1) The amended statute now directs family courts to consider, among other factors, “the practical impact of the parties’ need for separate residences and the attendant increase in living expenses on the ability of both parties to maintain a standard of living reasonably comparable to the standard of living reasonably comparable to the standard of living reasonably comparable to the standard of living in the marriage or civil union to which both parties are entitled.”

(2) The amended statute expressly provides that neither party has “a greater entitlement to that standard of living than the other.”

(3) The amended statute declares that “no factor shall carry more weight than any other factor unless the court finds otherwise.”

(4) The amended statute now states that the nature, amount and length of pendente lite support, if any, paid during the divorce proceeding is to be considered by the court when rendering a final alimony award.

Judge Jones applied these principles to the Malik case where the “blunt economic reality” of separation and divorce rendered it impossible for either party to financially maintain the prior marital lifestyle, or the same standard of living to which they formerly became accustomed during the marriage.

In the Malik case, the husband was a teacher earning $90,000 per year, while the wife was a hairdresser with an imputed income of $20,000 per year. In 2016, each party filed for divorce. They are living separately, and have been sharing joint legal and residential custody of their 2 children.

The wife filed a motion seeking pendente lite alimony which she contended that she needed alimony in order to maintain the marital lifestyle and standard of living, which she had not been able to maintain at the same level as the husband, because he was not paying support. The husband disputed the wife’s need for alimony because she had moved in with her mother.

When Judge Jones examined the evidence in this case, he concluded that the parties’ marital lifestyle budget was $6,100 per month. With the husband remaining in the former marital residence, that of course meant that there was not enough money for both parties to maintain the same lifestyle living apart that they were able to afford while living together. It was simple mathematics, the judge concluded.

Judge Jones went on to state that when neither party can afford to separately maintain the marital lifestyle after separation, both parties should be required to adapt to lifestyles which are financially lower than that which they enjoyed together. A separation constitutes a substantial change in circumstance which requires an appropriate adjustment to the status quo of the marriage. Put another way, no matter what a married couple’s prior married lifestyle and status quo may have been, a separation by married partners into two separate homes is sometimes as substantial a change of economic circumstances as on can possibly imagine.

While the judge certainly took into account both parties’ economic realities, he stated that he would not discount the wife’s need for support based upon her residence with her mother which “appears to be…of financial necessity.” He stated that denying alimony because limited financial circumstances required the wife to move back in with her mother would be “the height of irony.” Even without roof expenses, the wife still had reasonable needs.

Considering all the applicable statutory factors, under the totality of the circumstances, Judge Jones ordered that the husband pay the wife $350 per week in pendente lite alimony, which he noted may be considered “too high” by the husband and “too low” by the wife. But, he noted, it certainly could not be considered inequitable under all the circumstances.
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Eliana Baer, Associate, Fox Rothschild LLPEliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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