A divorce or separation rarely starts off in a clean, orderly fashion. Once the relationship begins to deteriorate there is often a messy period where the parties rights and options are sorted out. Who stays and who goes, and on what timeline? Who pays for what expenses? Who keeps what? These are the basic questions that have to be answered.
The law in this area is straightforward. The parties are supposed to maintain the financial status quo as their case progresses and they attempt to settle their issues.
One of the biggest questions to be resolved is how are the housing expenses shared during the break up. Generally speaking, if you were contributing 25% of the mortgage or rent expense on a monthly basis before the separation or divorce began, you will be responsible to continue to contribute 25% during the separation or divorce process. Unless the parties agree, one party cannot move out and say to the other party, “I’ve got my own rent and utilities now, so you’re on your own to figure out how you pay your housing expenses.” Even though you are in the middle of a break up, housing expenses have to be paid as they were before the break up. Practically speaking this is a tough position to be in for the person moving out of the home.
For example, let’s say husband moves out of the house during the divorce and does not return. When he goes out and tries to rent an apartment he has to come up with the security deposit, first month’s rent, and broker fee. Then he has moving expenses. Assuming that he settles into an apartment he has rent, utilities, and all of his other individual bills to pay. However, according to the law he still has to contribute his portion to the housing expenses at the home where wife is residing. Unless his cash flow situation is very favorable he will be stretched to the financial breaking point as he is paying a housing expense at two separate residences. Unfortunately for him the courts generally hold him responsible to contribute to his marital expenses ahead of his own personal living expenses.
If there are children a whole subset of other questions have to be dealt with. Do child support payments start during the divorce? What about childcare costs and extra-curricular activity expenses?
In order to maintain the marital status quo, whatever costs were being incurred prior to the separation will have to be paid during the separation. So childcare costs and expenses for the children’s extra-curricular activities will have to be paid. If child support was not being paid because the parties were living together, once the separation takes place child support will have to be calculated and paid from the parent of alternate residence to the parent who has residential custody (the parent of primary residence).
Who Pays The Other Living Expenses During The Divorce
With regard to the remaining joint expenses, the credit card payments, car payments, and other miscellaneous joint payments have to be made in accordance with the parties share of the total marital income. But what about spousal support or alimony? Can a party request alimony during the separation period prior to the entry of the divorce? The short answer is yes.
A fairly common situation is where the party earning more money moves out of the home while the parties figure out their next move – reconciliation, separation, or divorce. During this separation period the party with less money may need financial support for personal expenses that were subsidized when the parties were living under the same roof. There are two ways to handle this need. The party with superior income can pay direct spousal support or alimony to the other party, or he or she can pay some of the joint expenses as the equivalent of spousal support. So for instance, if the parties have a $2500 shelter expense, the party in the superior financial position can pay 100% of the $2500 shelter expense and no spousal support, or 50% ($1250) of the shelter expense and $1250 in spousal support. Either way the numbers add up the same. It’s just a matter of where the dollars are allocated.
Timing and Procedure To Get To Agreement
In order to minimize conflict and misunderstanding any agreement on how expenses will be paid during the separation or divorce should be written down. You can contact my office to draft a comprehensive marital settlement agreement which covers all of your bases. The agreement should be drafted prior to or soon after the separation so that there is no period where because of miscommunication, or anger, checks are bouncing or bills are going unpaid. If the parties cannot agree on the terms of the agreement a motion can be filed with the court to determine and compel payment of the expenses.
What Happens If The Spouse Who Moves Out Fails To Contribute Financially To The Expenses
If one spouse moves out and the parties cannot agree on how to pay their joint expenses during the divorce, or if there is an agreement and one party violates the terms of the agreement, application will have to be made to the court by way of a motion to have the court decide who should pay the expenses. This is called a pendente lite motion, and the decision rendered by the court in this situation is very fact-specific. The parties will each submit detailed financial statements (Case Information Statements) to the court, and the court will decide what has to be paid, by whom, by when and how. This is always a tough job for the judge because generally there is not enough money to go around. The judge will scrutinize the details of the financial statements and decide how the parties incomes will be allocated to pay expenses.
For over 20 years I have been helping my clients resolve issues relating to payment of housing, child support, alimony, and debt during their divorces. If you need the services of an experienced divorce lawyer to represent your interests in Bergen, Hudson, Passaic, or Essex county, do not hesitate to call my office at 201-731-3086, or e-mail me using the e-mail contact form. I also encourage you to contact me if you just have questions or seek clarification regarding your particular situation. The consultation is free.