Enforcement Proceedings and Attorney Retainer

Whenever there are proceedings brought to enforce child support or spousal support awards, attorneys can issue executions against assets owned by responsible party. In M.M. v. T.M., 2015 N.Y. Slip.Op. 25294 (Sup. Ct. Monroe Co. 2015), the trial court held that a retainer paid to an attorney to defend an enforcement proceeding can be subject to an execution by the opposing party.

In M.M., the trial court had to determine whether the execution issued pursuant to the judgment for unpaid spousal maintenance can be used to restrain a retainer held in attorney’s trust account, that was paid to defend the enforcement proceeding. Specifically, defendant-husband objected to the execution stating that ‘to permit the turnover would cause the husband “extreme hardship.'” Further, defendant argued that he held no interest in the escrowed funds and that by virtue of commencing representation, the defendant’s attorney acquired an interest superior to that of the plaintiff.

In addressing these arguments, the court held that the evidence in this case, based on the affidavit from the defendant-husband, was insufficient to meet the extreme hardship test. There was no demonstrated evidence of any “extreme hardship” and no evidence of severe financial impact on the defendant-husband if the funds are subject to the wife’s restraining notice. The defendant baldly asserted that there is such harm, but when push comes to shove, had no extrinsic proof to back up his assertions. There was no evidence of other unpaid creditors or financial hardship to the defendant. In the absence of such factual assertions, the court was not inclined to grant any protective order based on an inherent financial harm to the defendant-husband.

Further, the court addressed the argument that the defendant-husband did not have an interest in the escrowed funds. After reviewing the retainer agreement, the court found that according to the retainer agreement, the retainer paid was a “security retainer” that defendant’s attorney could not draw upon until the work was performed and the client was billed.  Until the bill was issued, the funds remained property of the client and the client would be entitled to the funds if the relationship was terminated. Therefore, the court held that defendant-husband continued to hold an interest in the retainer.

Finally, the husband’s attorney argued that his lien interest in the escrowed funds is superior to the plaintiff-wife’s claim for unpaid maintenance. The defendant-husband, in this instance, argued that the retainer funds, which are billed against, but not yet transferred into the attorney’s accounts, are subject to the attorney’s lien for services and that the wife, as a judgment creditor, did not have a superior claim to those funds. The court rejected this argument outright stating that:

To say husband’s argument is somewhat untested in New York is an understatement. This court can find no prior precedents to support this novel theory. In the absence of any precedents and the strong policy preference in New York statutory and case law to allow collection of family support funds, this court is unwilling to recognize that the husband’s counsel’s retaining lien holds a superior position when compared to the wife’s claims against the retainer funds on deposit with counsel.

Given the above, whenever a family law attorney is involved in defending post-divorce proceedings involving claims for unpaid spousal maintenance or child support, that attorney’s retainer is at risk of being restrained and, ultimately, collected by the opposing party. This makes representation of clients in similar circumstances risky and attorney is jeopardizing his chances of being paid. Since the court in M.M. suggested that advanced payment retainer, unlike the advanced payment retainer utilized by defendant-husband’s attorney, would not be considered property of the defendant, then the retainer would not be subject to being restrained. Therefore, utilizing that type of retainer would reduce the risk, however, there may be other issues since New York matrimonial rules frown upon non-refundable retainers. Another option, and probably a better one, would be to have a third party to pay the retainer.

Validity and Finality of Custody Stipulations

Many custody cases are resolved by agreement. When this happens, the parties often place their agreement on the record, either as an oral stipulation recorded by court stenographer or reduce it to a written agreement. Sometimes, immediately after or some time later on, a party to the stipulation may change his mind and ask that the court vacate the stipulation.

In Jon v. Jon, 2015 N.Y. Slip. Op. 51118(U) (Sup. Ct. Nassau Co. 2015), the plaintiff, immediately after entering into a written settlement stipulation, regretted her decision and changed her mind and attempted to have the stipulation vacated. Plaintiff argued that since she was not represented by counsel, that her agreement was not knowing and voluntary, and it came as a result of overreaching by defendant or undue pressure placed on her.

The court heard testimony of the parties determined that although wife was not represented by counsel, the absence of independent legal representation, without more, did not establish overreaching or require nullification of an agreement. She had the opportunity in just a few hours to negotiate with defendant’s counsel in the presence and with the assistance of a court mediator. She decided to pass on that opportunity.

Furthermore, plaintiff was not significantly disadvantaged by the lack of counsel because she could have obtained equal parenting time with her children if she had only agreed to it. She declined because she did not want the children shuttling between their parents. If defendant was not going to agree to let plaintiff have custody of the children—and he wasn’t—she decided to do what in her opinion was the next best thing: let the children stay with defendant. And she did not identify a single thing she wanted in the stipulation that was not included. Given that the stipulation was drafted and signed in “neutral territory”—the courthouse within earshot of the judge—and since the attorney for the children was present throughout, the absence of an attorney did not render the stipulation unfairly made.

The court concluded that neither the terms of the stipulation nor the circumstances surrounding its execution evidence overreaching on the part of defendant. As a result, the court held that it may “not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident” or imprudent. Christian v. Christian, 42 N.Y.2d 63, 72 (1977).

The key finding that the court made was the following:

This court does believe plaintiff in one important respect: she freely and fairly made a decision and executed an agreement that she very quickly regretted and desired to change. But there is no statute or case that affords a contracting party the opportunity to change their mind, regardless of how quickly they desire to do so, in the circumstances presented here. This court sees the wisdom in affording to an unrepresented party the opportunity within a short window the absolute right to rescind a custody agreement. That would be plaintiff’s only salvation when faithfully applying the current statutory and common law to the facts in this matter.

Stipulations are meant to bring resolution and finality to the parties. They should not be taken lightly and should be thoroughly understood before being finalized.

New York Legislature Passes New Statute Modifying Temporary and Post-Divorce Spousal Maintenance Formulas

On June 24, 2015, the New York State Senate passed Bill A7645-2015 which modified the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It is expected to be signed by Governor Cuomo in the near future.

The new law’s formulas apply to actions commenced on or after the 120th day after the bill become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after the bill become law). The new law can not be used as a basis to change existing orders and agreements.

The new law represents a very significant change to the post-divorce spousal maintenance provisions of Domestic Relations Law §236, as well as temporary spousal maintenance provisions that were passed in 2010.

As to maintenance, the following are the key aspects of the law contained in the Sponsor’s Memo:

The “cap” on the payor’s income used for the maintenance formula is $175,000, above which will be a matter of the court’s discretion. This reduces the cap (which now applies only to temporary pendente lite maintenance) from $543,000. The same $175,000 cap applies to post-divorce maintenance awards.

The statutes creates two formulas: one where child support will be paid to the maintenance recipient; and one where child support will not be paid, or where it will be paid to the maintenance payor. Those formulas are as follows: a. With child support where the maintenance payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.

First, maintenance gets calculated. Next, child support is calculated using the income of the payor after subtracting maintenance to be paid, and the income of payee income, including maintenance received.

The court may adjust the guideline amount of maintenance up to the cap where it finds that the guideline amount of maintenance is unjust or inappropriate after consideration of one or more factors, which are to be set forth in the court’s written or on the record decision. Where there is income in excess of the cap, additional maintenance may be awarded after consideration of one or more factors, which are to be set forth in the court’s decision or on the record.

When determining temporary maintenance, the court can allocate between the parties the responsibility for payment of family expenses” while the divorce action is pending. The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed. New factors in post-divorce maintenance will include: termination of child support, income or imputed income on assets being equitably distributed, etc. The duration of post-divorce maintenance is a function of a formula that includes ranges of different percentages of the marriage length, depending on how long the marriage lasted. For marriages of zero to 15 years, the guideline for maintenance awarded would be 15% to 30% of the length of the marriage; for marriages of more than 15 up to 20 years, maintenance would be 30% to 40% of the length of the marriage; for marriages of more than 20 years, maintenance would be for 35% to 50% of the length of the marriage. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case.

In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age. Actual or partial retirement will be a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.

As an example of the application of the formulas, consider the following calculations where a) the payor is the non-custodial parent and having C.S.S.A.-adjusted income of $150,000, and the payee is a custodial parent having C.S.S.A.-adjusted income of $50,000; and b) the payor and payee have the same incomes but there are no children being supported.

Calculation of Spousal Maintenance-page-001

Calculation of Spousal Maintenance-page-001


Additionally, the new law eliminates value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement as a marital asset. This is a significant change from the existing law. However, enhanced earnings may still be considered by the court when distributing other marital assets.

The changes to the Domestic Relations Law, once effective, will likely result  in greater uniformity of spousal support awards. Further, elimination of enhanced earnings as a distributable asset represent a significant change in New York’s law.

Terminating Spousal Support Provisions After Divorce Due to Change In Circumstances

In New York, spousal support, also sometimes referred to as “alimony” or “spousal maintenance” can be granted in a divorce case to either spouse by the court pursuant to Domestic Relations Law §236. Alternatively, the parties can agree to a specific amount of maintenance, its duration, and the circumstances under which it will terminate in their settlement agreement.

Factors that a judge or the parties will consider in determining spousal support, among others, include:

The duration of the marriage and the age and health of both parties;
The present and future earning capacity of both parties;
The ability of both to become self-supporting;
The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
The presence of children;
Tax consequences.

Even once the amount of maintenance is determined and included in the judgment of divorce or settlement agreement, spousal maintenance can be modified.

However, if the maintenance was set by the parties’ settlement  agreement, the party seeking its modification due to a change in circumstances will have to meet a significant burden of proof. Specifically, the party seeking the change will have to show prima facie evidence of “extreme hardship” before the court can hold a hearing to resolve these issues. Extreme hardship means that the payor’s circumstances are so adverse that the party can’t meet its living expenses without modifying spousal support. In a recent decision, McKelvey v. McKelvey, 2015 N.Y. Slip. Op. 02830 (3rd Dept. 2015), the Appellate Division found that the husband presented such evidence when he was able to show that “the undisputed proof indicating that the husband earns, after taxes, less than his monthly support obligation was sufficient to demonstrate prima facie evidence of extreme hardship, and Supreme Court should have held a hearing on his request to modify his support obligation.” Once such evidence is presented then the court hearing the case would hold a fact-finding to determine how spousal maintenance should be modified.

If spousal maintenance was set by a judge after a hearing, the party seeking the modification must establish a substantial change in circumstances and show that the needs of the dependent spouse or financial abilities of the paying spouse that warrant modification. The party making such request would face a significant burden and the court will have to consider such factors as the party’s current and past earnings, costs of living, financial obligations, as well as assets and liabilities.  In Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994), the Second Department held that, in determining whether there was a substantial change in circumstances sufficient to warrant downward modification, “the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion for downward modification and at the time of divorce or, as the case may be, the time that the order of which modification is sought was made.”

Further, a party who willfully or voluntarily reduces income will not receive a reduction in support payments. If evidence of such actions is presented to the court, the party seeking modification will not receive and is also likely to be ordered to pay the other spouse’s attorneys’ fees.

Service of Divorce Summons Over Facebook

As the world is changing with emerging technologies, the courts are starting to accept new technologies and social media. In a recent decision, Baidoo v. Blood-Dzraku, 2015 NY Slip Op 25096 (Sup. Ct. New York Co. 2015), the court permitted service of divorce summons over Facebook.

In New York State, summons must be served in all divorce cases. In a typical New York divorce case, the defendant must be served with the summons personally and an affidavit of service describing the circumstances of the service must be filed.

However, there are frequently circumstances where the party seeking divorce does not know where the other party resides. If that spouse cannot be located, he/she cannot be personally served. Under those circumstances, a party could seek permission from the court to use an alternative method of service under New York’s procedural rules. Usually, the last resort is service by publication which is available only when a party could not be located after a diligent search. The problem with service by publication is that it is not effective and can be expensive.

In Baidoo, the wife was permitted to serve her husband by direct message through Facebook after she was able to establish that:

1.  She was unable to personally serve the summons personally on the defendant;
2. It would be “impracticable” to serve him by “substitute service” (service on a person of suitable age and discretion or “nail and mail”);
3. sending the summons through Facebook would reasonably be expected to give the defendant actual notice that he is being sued for divorce.

In Baidoo, the defendant has never resided in New York, had no last-known address or place of employment, refused to disclose to plaintiff where he lived, and was unregistered with the Department of Motor Vehicles. The only means of contact with him that plaintiff had was through Facebook.

Additionally, the plaintiff had to present the court with evidence that:

1. The Facebook account actually belonged to the defendant.
2. The defendant logged into the account with some regularity so that he would actually get notice of the divorce.

If plaintiff is able to establish the above, service through Facebook should be a viable method of alternative service.

I suspect that with time, we are likely to see that service through electronic communications and social media will become more and more common. For now, service through social media is uncommon and likely to see a considerable degree of scrutiny from the court.

Enforceability of Prenuptial Agreements

Prenuptial agreements can be used to resolve issues related to spousal maintenance, equitable distribution, and other issues that may come up in the event the parties decide to divorce. While I have previously written about different issues involving validity and enforceability of prenuptial agreements, and how the courts would analyze them, a recent case raised an issue of what happens to the prenuptial agreement if a claim is made that the parties verbally agreed to revoke it.

In Braha v. Braha, 45 Misc 3d 1211(A) (Sup Ct. Kings Co. 2014), the wife claimed that the parties agreed to revoke their prenuptial agreement which was then torn in pieces and thrown off the honeymoon cruise ship. The agreement, which was entered by the parties shortly before the marriage after an engagement of less than three week, was signed by the bride after the groom told her that his father “threatened to cut him off” if he did not sign a prenuptial agreement. According to the wife, the parties never intended agreement to be enforceable and did not even attempt to negotiate it.

After twelve years of marriage, when the husband filed for divorce, he asked the court to enforce the agreement. The wife argued that she was fraudulently induced to sign the agreement after the husband told her that the agreement would never be enforced and that once on their honeymoon, the parties had torn up the agreement and threw it into the ocean. The husband pointed out to the court that both parties were represented by counsel and was able to produce an original agreement.

In rejecting the wife’s claims that parties orally agreed that they would not be bound by the agreement, the judge noted that the prenuptial agreement contained the boilerplate provision that:

This Agreement contains the entire understanding of the parties with respect to the matters set forth herein, including, without limitation, the rights of the party with respect to the property of the other party. There are no representations, warranties, promises, covenants or understandings, oral or otherwise, other than those expressly set forth herein.

The court further held that ripping up the agreement and throwing it into the ocean did not revoke the agreement since it provided that:

Neither this Agreement [nor] any provisions hereof, including without limitation, this article, may be altered, modified, terminated, or revoked, except by an instrument executed and acknowledged by both parties with the same formalities as this Agreement.

According to the terms of the agreement, the only way this agreement could have been revoked is in writing, signed and properly acknowledged by the parties.

The takeaway from Braha is that when it comes to prenuptial agreements, anything and everything has to be done in writing, signed and properly acknowledged. The parties should negotiate their agreements and not rely on oral statements. If there is a divorce action in the future, unless the agreement was properly revoked, it will be offered in court.

Duration of Residency in New York as Prerequisite to Divorce Action

In order to have a valid divorce action in New York, certain residential requirements have to be satisfied. Domestic Relations Law §230 requires that:

1. You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action;
2. You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action;
3. The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action;
4. The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action;
5. Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action.

The statute requires that the residency be continuous. What happens if the party spends significant periods of time outside of New York?

In Murjani v. Murjani, 2014 N.Y. Slip. Op. 08366 (1st Dep’t. 2014), the Appellate Division held that durational residency requirements were satisfied by the defendant, despite the fact that defendant would spend significant periods of time in India and elsewhere. The court held that since defendant had maintained a permanent residence in New York and would return there with regularity, those facts satisfied continuous residency requirements. Thus, as long as permanent residence is being maintained in New York, and the party either returns or intends to return there, Domestic Relations Law §230 is satisfied and a divorce action can be maintained.

Statement That Marriage Was Irretrievably Broken Is Sufficient to Establish Cause of Action For Divorce

I have previously written about the issues associated with the grounds for divorce under the no-fault statute (Domestic Relations Law §170(7)). Prior decisions associated with issue were trial level decisions and, therefore, there were subject to potentially different result after appellate review. Now, there is some finality to this issue. Two recent appellate decision held specifically that a statement under oath that the marriage was irretrievably broken for a period of six months or longer was sufficient to establish a cause of action under Domestic Relations Law §170(7).

In Trbovich v. Trbovich, 122 A.D.3d 1381 (4 Dep’t. 2014) the Appellate Division, Fourth Department, affirmed an order which denied the plaintiff’s motion for summary judgment seeking a divorce pursuant to Domestic Relations Law §170(7). It agreed with plaintiff that the relationship has broken down irretrievably for a period of at least six months opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law §170(7) is not entitled to litigate the other spouse’s sworn statement, and indicated that to the extent that its decision in Tuper v. Tuper, 98 A.D.3d 55, 59 (4th Dep’t 2012) suggested otherwise, it declined to follow it. Nevertheless, the Appellate Division held that plaintiff was not entitled to summary judgment under Domestic Relations Law §170(7) at this juncture of the litigation because the ancillary issues had not been resolved by the parties or determined by the court.

In Hoffer-Adou v. Adou, 2014 Slip.Op.  07436 (1 Dep’t. 2014) the Appellate Division held that contrary to the husband’s contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL §170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law. Trial court’s grant of the divorce did not contradict DRL §170(7)’s requirement that “[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.” The parties’ separation agreement resolved the issues of child custody and support. Their subsequent commencement in the Family Court of proceedings concerning these issues did not render the court without authority to grant the divorce, since non-compliance with/or enforcement of, the separation agreement is not an element of Domestic Relations Law §170(7).

Thus, as long as the party seeking divorce is able to make a sworn statement that the marriage was irretrievably broken for a period of six months, that party will receive a divorce once all other issues have been resolved. There is no way for the defendant to challenge that statement, and the court will not permit introduction of testimony challenging it. This follows the intent of the no-fault statute to prevent grounds trials.

Temporary Maintenance and Payment of Additional Expenses by Monied Spouse

One issue that comes up fairly often in divorce cases is the issue of whether the monied spouse who is paying temporary maintenance is also responsible for additional expenses incurred by the non-monied spouse. At least some of the prior decisions held that when the temporary maintenance is being paid, the recipient was responsible for his or her living expenses, including any mortgage payments or housing expenses.

However, it appears that at least some of the appellate decisions hold otherwise. In Vistocco v. Jardin,116 A.D.3rd 842 (N.Y.A.D. 2 Dept.), the parties were married in 1995 and had three unemancipated children. The wife made a request for temporary maintenance as well as for payment of carrying costs on the marital residence. The trial court awarded the defendant $3,000 per week for child support and $3,000 per week in temporary spousal maintenance, directed the plaintiff to pay the mortgage and taxes on the marital residence where the defendant resided with the parties’ children, directed the plaintiff to pay the defendant’s car insurance, and awarded the defendant interim counsel fees and expert fees in the sums of $12,500 and $3,500, respectively. The Appellate Division affirmed.

The plaintiff argued that the Supreme Court erred in directing him to pay, in addition to spousal maintenance, the mortgage and taxes on the marital residence and the defendant’s car insurance. He contended that the pendente lite maintenance award is intended to cover the defendant’s basic living expenses, which include the mortgage, property taxes, and her car insurance. The Appellate Division held that the formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a  payee spouse’s basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses (see  Khaira v. Khaira, 93 AD3d 194). It further held that it may be appropriate to direct payment by the monied spouse of the mortgage and taxes on the marital residence and other expenses of the nonmonied spouse under certain circumstances (see id.). In light of the evidence that the plaintiff’s income exceeded $500,000 and the gross disparity between the plaintiff’s income and the defendant’s income, the trial court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence (Domestic Relations Law § 236[B][5-a][c][2][a][ii] ), as well as the defendant’s car insurance.

Unfortunately, until the Court of Appeals hears a case involving these issues, it is likely that there will not be uniformity among the trial court decisions. If you are non-monied spouse, you have nothing to lose by making a request for carrying costs of the marital residence, provided that there is financial wherewithal on the part of the monied spouse. Ultimately, a decision of whether such additional should be requested should be made on case by case basis.

Standard of Living, Diminished Income, Spousal Maintenance and Child Support

The courts in New York have had some difficulty dealing with situations were a claim of recently diminished income has been presented to the court in response to a temporary spousal support application. In most situations, the courts would either impute income or deny downward modification. The courts have been concerned with the parties’ standard of living for the non-monied spouse and the children despite  the claims of the income-producing spouse of diminished resources and/or income. One trial decision, S.A. v. L.A., 2 Misc.3d 7441 (Sup. Ct. Westchester Co.), illustrates the situation where the present financial situation – the husband earning a lot less income than existed throughout the marriage, has led the court consider present circumstances and to caution the non-monied spouse that she would have to deal with a new economic reality.

In considering interim spousal support, the court had to determine if it would apply the husband’s 2012 income of $819,049 or his far lesser annualized 2013 income imputed at $240,000. The husband was 56 years old and employed in the financial services industry. The wife was 64 years old stay-at-home wife and mother, who has not had any significant for 23 years of the marriage. The husband claimed that he was terminated from his old job through no fault of his own and he was forced to find new employment at a much lower rate of pay. The wife argued that he had voluntarily left his former employment.

The court had to address the principles of utilizing the current income as opposed to the income on the last tax return on a presumptive temporary maintenance calculation. The court determined that according to the language of the Domestic Relations Law §240 (1-b) (b) (5), the income rules applicable in child support proceedings may be used to determine an application for temporary spousal maintenance, as is available for interim child support.

The second part of the court’s analysis, and of great significance, was the court’s view of the parties’ present diminished financial situation from their historic standard of living even as measured by the immediately preceding year. The reduction in the family’s income from the husband’s 2012 adjusted gross income of $819,049.00 to the annualized 2013 income of $240,000.00, was accepted by the court. As result, instead of presumptive temporary support of $17,000.00 per month as requested by the wife, the court awarded $5,737.00 per month. The court further found that with the requested amount of $17,000.00 exceeded the wife’s legitimate monthly expenses, rendering the presumptive award unjust and inappropriate. The court ruled that the issue of whether the husband had been discharged or voluntarily separated from his old employment was reserved for trial.

In its decisions, the court stated that:

The court recognizes that the spousal support provisions in this decision and order will greatly affect the parties’ respective post-separation standards of living. They need to consider the financial predicament they are in, and how to deal with the future. They are now suffering the consequences of their prior high standard of living. It is beyond dispute that two cannot live as cheaply as one, and that “hardship” at any economic level follows drastic losses of income. It is time for the parties to recognize the financial reality they may well face in the future, given their ages, work experience and future prospects for employment. The court urges that the parties’ focus should be on financial planning with asset and debt liquidation. The continuance of this costly litigation will not heal their wounds, both economic and emotional, already suffered, but rather will exacerbate them.

The decision in S.A. v L.A. illustrates that during the difficult economic times, the parties may have to temper their expectations. If a monied spouse can not earn past levels of income through no fault of his or her own, the non-monied spouse is likely to have to share the hardship as well.