Malek v. Malek addresses practical constraints of maintaining the status quo pendent lite.

In an illustrative, though unpublished case, Judge L.R. Jones, (ret) addressed head on the unspoken truth about maintaining the marital “status quo” pendente lite. Malek v. Malek featured a typical middle-class divorce quandary: Plaintiff Husband was the breadwinner as a public school teacher earning $90,000 a year while Defendant Wife was a part-time hair dresser who was imputed $20,000 a year, although it was acknowledged she had never earned that amount during that marriage. At issue was what, if any, pendent lite support the supported spouse was entitled to. The Wife argued that she needed pendent lite support in order to maintain the marital lifestyle and standard of living, while the husband asserted that not only had his expenses increased, but that since Wife was living with her mother, she did not have the same kind of expenses and her budget did not accurately reflect her need for spousal support. Husband further argued that, while his monthly expenses did not change significantly after their separation, he did not have any left over funds to pay Wife support.

In addressing the issue, the Court tackles a common legal fiction: that spouses, once separated, are entitled to maintain the status quo of their marital lifestyle. For most divorcing couples, this is simply not possible. If the parties separate during divorce, as many do, then there are suddenly two homes to support on the same amount of income. Which is not to say that pendent lite orders are not important. On the contrary, as the opinion points out, most divorce cases never reach trial but almost all of them require some kind of pendent lite support agreement in order to prevent “economic chaos.” Ironically, most of the case law addresses alimony and trial issues instead of the more common need for pendent lite support.

Malek thus extrapolates from spousal support case law and the revised alimony statute to address the issue of pendent lite support. While the trend may have been for courts to consider the needs of the supported party over the breadwinner, Judge Jones notes that an analysis of the case law does not favor supporting one spouse over the other. None of the seminal cases advocate for focusing “only on the supported spouse’s ability to maintain the former martial lifestyle, to the total exclusion of the supporting spouse’s similar right to seek maintenance of such lifestyle as well.” Courts should analyze all thirteen criteria outlined in the alimony statute, N.J.S.A. 2A:34-23(b), instead of focusing the analyses primarily on maintaining the marital lifestyle. This is bolstered by the amended statute’s new directive that the courts should consider “the practical impact of the parties’ needs for separate residences”, the additional costs associated with same, and that “neither party has a greater entitlement to that standard of living than the other.”

When courts properly considered these factors in light of the economic reality most divorcing couples face, they will likely realized that maintaining the marital lifestyle for both parties is impossible. Once it is clear that there is simply not enough resources for the parties to maintain their marital lifestyle, the court must decide the most just way of addressing both parties’ expenses and needs. There is no one size fits all equation. Each case is fact sensitive and requires a careful analysis of the thirteen factors. In most cases, “a mutually fair and equitable pendent lite approach often requires both parties...to adapt to interim lifestyles which are financially lower than that which they both enjoyed together during the marriage.”

Although unpublished, the Malek opinion has been lauded by family law practitioners as a practical and well-reasoned approach to pendente lite support.

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