Dear Cassie: I am in the process of going through a divorce. I do not currently work and have not worked for most of the marriage (10 years). My husband and I lived a very nice lifestyle during our marriage, which included regularly attending the theater and opera in Manhattan. (I haven’t been able to partake in this entertainment over the past year due to COVID). My husband has told me that, now that we are getting divorced, I have to cancel these memberships. Is this true?
First, you should understand that the marital financial status quo should be maintained pending a trial or settlement of your case. Without a written agreement of the parties or Order of the Court permitting the memberships to be canceled, they should be maintained pending the outcome of your case.
As for whether the memberships will be maintained post-divorce, the issue here is both your and your husband’s respective financial abilities (after considering the earnings capacities of both parties and any alimony paid or received) to continue to live a lifestyle reasonably comparable to the marital lifestyle, post-divorce.
In determining alimony, New Jersey courts consider a number of factors, including: each party’s earnings capacity; the length of the marriage; and the standard of living during the marriage. Generally speaking, if you have traditionally been the supported spouse during the marriage while your husband worked, it is likely you will receive alimony from him post-divorce. The Court will consider in the alimony analysis your ability to earn an income after returning to the job market, notwithstanding the fact that you do not currently earn an income. However, if there is a great disparity between your earnings capacity and your husband’s earnings capacity, you are likely an alimony candidate.
Pursuant to New Jersey’s alimony statute, each party is entitled to live at a lifestyle “reasonably comparable” to the marital standard of living post-divorce, with neither party having a greater entitlement to that standard of living than the other. Thus, how you spent money and lived your lifestyle during the marriage becomes relevant. During your divorce, you will be required to prepare a document called a Case Information Statement, which identifies your marital monthly budget. On this document, you would include your expenses for entertainment, including the theater and the opera. Your lawyer will likely seek alimony which will permit you to continue to pay these expenses post-divorce. Your husband’s income and expenses will also be relevant in assessing the ability for either party to continue to maintain these expenses post-divorce.
To the extent that your lifestyle was recently diminished due to COVID (for example, you stated that you have not been able to attend the theater and opera in the past year), you will need to be prepared to address with the Court this aberrant and presumably temporary decrease in your lifestyle, and how it should not be used as a basis to decrease your alimony post-divorce.
If you are dealing with the issue of alimony, you should seek the advice of matrimonial counsel.
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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.