We often judge movies by their endings or the efforts of our favorite team by the results in each game’s final score. In the film “Dark Night Rise”s, one of the characters argues that you “either die a hero or live long enough to be the villain.”
Likewise, in a divorce, attorneys and their clients often focus on the final outcome of a case. Who received custody of the children? How much or how little alimony will be paid? Which parents is entitled to parenting time during Christmas this year? What is lost in this somewhat myopic view is the importance of another ending—-the end of a relationship. So much of a New Jersey divorce outcome is decided by the timing of a divorce.
Although the alimony statute and other statutes speak to a more global view, generally only the last year to five years will really be considered in most if not all instances. If you are filing for divorce when your spouse’s income is at an all-time low, then alimony may be effected—in some instances greatly so. Overtime and bonuses may be considered in New Jersey divorce actions. Sometimes, an individual’s recent success can end up harming the outcome of their case.
Likewise, a relationship’s current “status quo” is important with regards to issues of custody and parenting time.
Now, the point of this blog post is certainly not to infer that people should try and “game the system,” neglect maintaining the status quo, or start turning down all over-time if they feel separation or divorce is imminent—because such “divorce planning” can not only be detrimental to a case, but in some instances, (particularly involving the hiding of assets) may even be illegal. Rather, I wish to illuminate how the timing of a relationship’s ending can be just as important a factor as the ending achieved by divorce and a marital settlement agreement. This is because the facts associated with a relationship’s ending (particularly when a formal divorce pleading is filed), may affect, more than any other single factor, the ultimate disposition of a case.
My basic question is this: is this a fair result? If the recent status quo for a hypothetical couple was for one party to work 80 hours a week and the other to work part-time (even though they were healthy and free to work full-time), is it fair that alimony will often be based upon their recent earnings and W-2’s? What if the party working part-time simply has no desire to work, or knows they can later rely upon a huge inheritance? What if the party working part-time has a higher level of education and a greater ability to earn income than the party working 80 hours a week? To use another example, what if one party’s salary is on an upwards trajectory—-how can that be factored in to create a fair starting point for alimony and child support?
Conversely, is it too nebulous a proposition for court’s to focus more on all of the alimony factors? Or is it understood that focusing on merely the last year (or two? or three?) may be somewhat flawed, but that there is no better way to cleanly resolve such issues?
It should be noted that while Lepis requires a “permanent and substantial change” in circumstances for support to be modified, there is no workable requirement of “permanency” for a status quo to be created—not during the pendente lite phase nor at the final disposition of the case.
My conclusion is this: I’m not sure if a better method exists, but I do know I have seen more than a few litigants suffer—perhaps unfairly—due to a focus on the recent history rather than the overall circumstances of the case. Unfortunately, as with all things, it’s much easier to point out such problems than to posit their possible solutions.
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