The Cost/Benefit of Proving Marital Lifestyle in Determining Support


The alimony statute, codified at N.J.S.A. 2A:34–23, requires the court to consider 13 specifically enumerated factors (plus a 14th catch-all) in determining alimony. One of the factors to be considered is the standard of living established in the marriage or civil union and the likelihood that each party can maintain a reasonably comparable standard of living, recognizing that neither party has a greater entitlement to that lifestyle than the other. As a matter of practice, a detailed analysis of marital lifestyle is not always fitting and hence not always necessary where the case involves W-2 payors and payees or where there are stipulations as to income of the parties. Much professional time and effort is, however, often spent attempting to prove marital lifestyle by the payee spouse where the payor, for example, is self-employed and income does not at first blush appear to match monthly lifestyle expenses, in an effort to prove entitlement to greater support. Bank statements, credit card statements, and various other statements and receipts are produced to demonstrate that the marital lifestyle included lavish vacations, expensive restaurants, luxury cars, and other indicia of a comfortable lifestyle.  Thousands of dollars may be spent on forensic work and the preparation of reports to bolster the payee spouse's claim for support.

Presumably all of this effort to prove the parties lived a lavish lifestyle will go a long way toward the lofty goal of obtaining for your client the most alimony to which he/she may be entitled. But will it? In cases where income has been sufficient to support this lifestyle and is easily provable, there will clearly be a basis for a significant alimony award. In cases were income is clearly insufficient to support what appears to be a big spending lifestyle, or is extremely difficult to prove, then has all the effort to prove marital lifestyle been ill-advised? How indeed can a Judge award alimony if a party cannot prove income sufficient to support the award? In circumstances where there is some evidence a couple has clearly lived beyond their means, how then can a Judge even consider the lavish lifestyle in setting alimony?

As a practical matter, a Judge cannot set alimony based on lifestyle alone without solid proof as to income to support the award. And although standard of living is included as a factor considered in establishing alimony, where income is insufficient or not provable to support the parties' marital standard of living, is marital lifestyle/standard of living useful to the payee spouse or even relevant at all? Pages and pages of forensic analysis and dollars spent evaluating the cumbersome detail – – only to have the Judge be constrained by the reality of the situation. If income is not there or cannot be specifically proven, what difference can all of this make? One party's claim that the couple lived a lavish lifestyle so the income MUST be there to support it, does not always cut it in the final analysis. At the end of the day, proof of income (or lack thereof) will normally trump marital lifestyle claims.

It is my experience after years of practice in the matrimonial field that regardless of marital lifestyle/standard of living, determination of an alimony amount too often boils down solely to the ability of the parties to earn/pay.  Marital lifestyle/standard of living, once you are in the Courtroom, appears to be the least relevant where income is either insufficient or cannot be proven to support same. In this situation, the Court's hands are tied. It is very unlikely to back-end proof of income by inferring same from a lavish lifestyle.

Accordingly, performing a cost-benefit analysis upfront to determine how much time, effort, and money can be devoted to proving marital lifestyle in any case is required. Proof of marital lifestyle may be a huge undertaking and there is always some degree of difficulty in tracing cash transactions. An attorney must carefully assess whether a particular case warrants expenditures on lifestyle analysis and whether it is the kind of case where such expenditures will translate into a tangible result in the form of an increased support award for the payee spouse. If so, plow ahead. If not, it may be better to go on the offensive and uncover the income.

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