THE GAP BETWEEN WHAT CLIENTS WANT
AND WHAT THE COURT CAN DO
- By Gary Borger, Esq.

Each client comes into our office for the first time with questions to be answered.

What will happen to my children and me?  Will we have to sell the home?  Will we have to move from our home in the suburbs into an apartment?  Will we get enough support to live as we’ve been living?  How will we survive? 

How much support will I have to pay?  Will I still be able to live and pay my expenses if I have to pay alimony and child support?  Why should he/she get alimony if he/she cheated or walked out on our marriage?

Each prospective client also comes in ridden with anxiety due to a lack of knowledge of what will happen to him or her now and in the future as a result of the pending divorce.  The value to the prospective client of our initial matrimonial assessment is to answer the prospective client’s questions and relieve or at least lower his or her level of anxiety.

New clients also present with needs to be met in the course of their divorce.  Often a new client seeks revenge for what the other spouse “did” to him or her by being unfaithful, by lying, squandering money, being controlling, emotionally abusive, and/or secretive and controlling with the finances, etc.  Or, a new client comes in feeling victimized by his or her spouse and wants a judge (a father figure in the eyes of many clients) to mete out justice by punishing the other spouse or validating that, in fact, he or she has been victimized and needs to be vindicated.  These needs are very real, so real they are almost palpable to the attorney in the initial conference.

Unfortunately for the client with such needs, the legal system has moved away from punishing errant, unfaithful, abusive, controlling, and/or uncaring spouses with the advent of no-fault divorce.  In New Jersey as a matter of law, division of property cannot be affected by the fault of a spouse; that is, you can’t get more or less property or value for property because your behavior (or that of your spouse) was the primary cause of the breakup. 

The same is true with regard to alimony.  While the New Jersey alimony statute includes fault as a factor in determining alimony, the New Jersey Supreme Court has all but eliminated the fault in determining alimony or the amount of alimony to be paid or received.  In a case called Mani v. Mani, the New Jersey Supreme Court  ruled that fault or misconduct  may be taken into consideration in the determination of the amount and duration of alimony (not on whether or not a judge will award any alimony), and then ONLY to the extent that the misconduct affects the economic status quo of the parties.  By way of example, if a spouse gambles away savings and retirement funds, and the remaining assets are inadequate to allow the other spouse to recoup her share of what was squandered, an appropriate savings and retirement component may be included in the alimony award.  Where marital fault such as infidelity or emotional cruelty has no economic consequences, fault cannot be considered by the judge when an alimony award is fixed.  The only exception to that rule is the very narrow band of cases involving egregious fault.  The Supreme Court did not define what “egregious fault” means other than to say it is something more than ordinary fault, defining it loosely as a term of art that requires not simply more, or even more public acts of marital indiscretion, but acts that by their very nature, are different in kind than ordinary fault that breaks up a marriage.  In the extremely narrow class of such cases where a spouse’s conduct rises to the level of egregious fault (whatever that is), fault may be considered by the court, not in calculating an alimony award, but in the initial determination of whether alimony should be allowed at all.

In summary, New Jersey courts are not able under the law which judges must apply to meet the expectations of parties who see themselves as innocent victims and seek to have fault used to punish an errant spouse.  Those that seek retribution or a “pound of flesh” in divorce litigation will find the process extremely frustrating and unsatisfying and will only increase their legal fees in pursuit of such an unattainable goal.

A better solution for the client is to engage in individual counseling with a psychologist, social worker or other family therapist.  Divorce has proven to be one of the most emotionally traumatic life events, akin to the death of a loved one or loss of one’s job which threatens one’s existence as one knows it.  It is the hope of this writer that those who read this article and who are considering separation or divorce or are in the process of divorce will consider entering into individual counseling to help heal from that trauma.

In summary, it is essential that all divorce litigants understand the limitations of the judicial system in meeting the emotional needs of spouses going through a divorce and seek other more appropriate and effective avenues to meet those needs.

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