Thursday, July 30, 2009

Planning for Marital Seperation

What happens when the primary income earner decides the marriage is over and leaves the marital residence? The first reaction by the remaining spouse is likely anger and fear. The fear of the unknown, what’s going to happen next and how are the bills going to be paid are very real and valid concerns. When the primary incomer earner, in a majority of the cases, the husband, leaves the home he is likely to rent an apartment. As a result, there are additional monthly expenses besides the rent, such as utilities which must get paid. In many instances, there may not be sufficient income to pay the ordinary marital household expenses and the new apartment expenses. What usually occurs next is that the husband reduces the available income normally allocated towards paying the marital residences’ monthly expenses. The result is foreseeable, more arguments, more anger and fear. One of the main problems with this scenario is the lack of communication and preparation for the separation of the couple. Instead of discussions, budget planning and mutual agreements between the couple, there is a unilateral action taken by the husband and forced upon the wife. The lack of planning normally has drastic consequences for both of them.

In New Jersey, the remaining spouse in the household who counted on the primary income earner for support may bring a motion in the Superior Court, Family Part after the filing of a divorce complaint seeking a court order to force the primary income earner to continue to pay the normal and reasonable martial household expenses. This motion is called Pendente Lite, which means pending the litigation. This is an award of funds intended to provide temporary support during the pendency of the divorce. Pendente Lite payments are regarded by the court as a means for maintaining the status quo between the couple until the court can undertake a full analysis of their financial situation. The court has full discretionary authority to force the primary income earner to pay or in the case of duel income households, to continue to contribute his share to the marital monthly expenses and pay for the dependent spouse’s attorney fees for the cost of the motion. The court may also order the use of bank accounts or the selling of marital assets which can later be charged against the husband during the final distribution of assets between the couple to maintain the status quo.

The result, award of Pendente Lite support is that most in not all of the normal marital monthly expenses are paid by the primary income earner and his post separation expenses are not fully taken into consideration. This rebalancing of monthly income and liabilities, may place the primary incomer earner is worst financial circumstances than prior to leaving the marriage and marital residence.

A better solution would be for the divorcing couple to come to terms that a separation is eminent and rationally prepare for its financial aftermath. Open and frank discussions, if possible would potentially alleviate the aftershock of the primary income earner learning that he may not have sufficient monthly income to pay for the two residences. It would also benefit the remaining spouse by hopefully reducing some of the stress and fear of the unknown. Divorce mediation would be quite helpful in this situation. A divorce mediator can assist the couple in the realization of the limited funds, offer options after identifying and discussing the couple’s concerns and prepare a separation agreement which address those concerns and detail the couple’s respective responsibilities.

Once an interim separation agreement is in place, a certain trust usually ensues between the couple. Then the couple through the divorce mediator can commence discussions on their long term plans for asset and liability distribution, spousal support, child support, visitation issues and the handling of tax consequences. The divorcing couple through proper planning and the use of an experienced divorce mediator can save thousands of dollars in legal and court cost fees, as well as heal quicker than if they allow emotional and reactive impulses to take control.

3 comments:

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