Under the guise of the concept that “it costs more to live in two houses than it does one” or “when parties are living separate, they both can’t continue to enjoy the marital lifestyle”, very often, when deciding pendente lite (i.e. interim) support motions, judges go through the gymnastics of arbitrarily reducing one or both parties’ budgets to come up with a temporary support number.  Now, those concepts are not necessarily incorrect in most cases.  But there are extreme income/high net worth divorce cases where that may not be true (except perhaps for the parties’ ability to save during the pendency of divorce at the same level that they did during the marriage.) You often see the random cutting of vacation expenses (“they don’t need to go on vacation during the divorce”), shelter, food, entertainment, car repairs, savings and investment, charitable contributions, etc. when a judge slashes a budget to justify a number.  When a judge does this arbitrary cutting of a budget in an extreme income/high net worth cases (or any case for that matter), is this modifiable at the time of trial, and if so, what standard should a court use?

That questioned was answered in the unreported (non-precedential) Appellate Division case of Weidel v. Weidel  decided on November 18, 2021.  In that case, the parties settled pendente lite support, with the wife receiving $6,000 per month, plus up to $1,000 per month in vehicle expenses.  The parties further agreed that the husband would pay additional support that would be quantified at trial, of not less than $3000 per month or more than $10,000 per month retroactive to February 1, 2015.  Their consent order also provided that:

… The parties agree that [p]laintiff’s pendente lite budget shall not be less than $10,000 per month or more than $17,000 per month, and will attempt to agree upon an amount at final resolution of the case. If the [c]ourt is required to adjudicate the issue at the time of the final hearing, [p]laintiff’s total pendente lite budget shall not be found to be less than $10,000 per month or more than $17,000 per month, inclusive of Schedule “A,” “B,” and “C” expenses. This budgetary determination by the parties or court shall be made effective as of February 1, 2015, with [d]efendant receiving credit for all payments that
he made . . . .

After a 20 day trial, the trial judge determined that the wife  required $18,007 per month to live reasonably comparable to the marital lifestyle. However, initially, the judge reduced that amount to $17,000 consistent with the Consent Order, then reduced the figure by the $7,000 per month the husband had paid and concluded that the wife should receive an additional $9,000 retroactive to February 1, 2015.  In a subsequent, supplemental opinion, the judge on her own changed her decision.  Specifically, the judge awarded the a $163,184 credit of additional support owed to the wife representing $3,472 per month for the forty-seven- month pendente lite period  The figure was calculated by setting a pendente lite budget for the wife at $13,372 per month, subtracting the $7,000 husband agreed to pay pendente lite, and $2,900 in income imputed to plaintiff.   This decision, while possibly consistent with the Consent Order, ignored the marital lifestyle.

The Appellate Division reversed the failure to use the marital lifestyle in calculating the credit.  The rational started with the general rule under a case called Mallamo, pendente lite awards are subject to amendment after trial because they are typically established by the submission of certifications and without the benefit of a trial.  The rationale continued with a primer on the lifestyle issue:

The Supreme Court has emphasized the goal of spousal support “is to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.” Crews v. Crews, 164 N.J. 11, 16 (2000), see also N.J.S.A. 2A:34-23(b)(4). Because spousal support is so closely identified with the marital lifestyle, even where parties have settled their divorce, they must address the marital lifestyle in the settlement. See R. 5:5-2(e) (providing a range of options, including preserving the means to calculate the marital standard of living and agreeing the
marital lifestyle is satisfied by the settlement). The marital lifestyle is the yardstick to measure and establish appropriate spousal support, whether pendente lite or post-judgment. See S.W. v. G.M., 462 N.J. Super. 522, 532-33 (App. Div. 2020) (holding that fashioning spousal support from the pendente lite lifestyle is an error because it ignores the statutory mandate to consider marital lifestyle and does not capture how the parties actually lived) .

Though there was the consent order, the Appellate Division stated that they were unconvinced that the wife waived the applicability of the marital lifestyle to the calculation of pendente lite support.  The Court further held that:

Plaintiff sought alimony, and convinced the trial judge she needed $18,007 per month to sustain herself in accordance with the marital lifestyle. Therefore, the judge was required to start with the marital lifestyle in calculating the reasonable and appropriate amount of the Mallamo credit. For these reasons, we reverse the calculation of the pendente lite credit and direct the court to utilize the marital lifestyle figure of $18,007 per month to determine the reasonable and appropriate pendente lite budget for plaintiff, not exceeding $17,000 per month.

Aside from departing from the Consent Order, the application of actual lifestyle as opposed to what the court arbitrarily reduced it to be, is fascinating, because this happens all of the time.  This is the second case that I have blogged on this year about a retroactive adjustment of pendente lite support – though in that case, it was the addition of a retroactive savings component.   Either way, in high income cases, whether by trial or settlement, a second look at the appropriateness of the pendente lite support, vis a vis the marital lifestyle, may be appropriate.

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Eric S. Solotoff, Partner, Fox Rothschild LLP    Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.

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