The Supreme Court Decision in Weishaus

What Duty of Care Has It Imposed?

By

Charles F. Vuotto, Jr., Esq.

2005

            In a unanimous[1] landmark decision issued June 9, 2004, our Supreme Court held that in uncontested divorce actions, trial courts must have the discretion to approve consensual agreements that include a provision for support without rendering marital lifestyle findings at the time of entry of judgment.  As a result, the holding in Crews v. Crews, 164 N.J. 11 (2000) should no longer be read to require findings on marital lifestyle in every uncontested divorce.  According to the Supreme Court, a trial court may forego the findings when the parties freely decide to avoid the issue as part of their mutually agreed upon settlement, having been advised of the potential problems that might ensue as a result of their decision.  However, even if a court does decide not to make a finding of marital lifestyle, our Supreme Court has directed that, it should nonetheless take steps to “capture and preserve” the information that is available. 

            This article will address some of the questions that arise from these directives, such as:  What factors must a court consider when determining whether or not to forego the findings?  How can the court take steps to capture and preserve lifestyle information?  What are the responsibilities of matrimonial attorneys to advise their clients of the ramifications of not specifically delineating the marital lifestyle and how can attorneys fulfill these obligations?  And finally, has a new independent duty been placed upon attorneys to “capture and preserve” lifestyle information at the time of an uncontested hearing?

            In 2000, our Supreme Court directed the lower courts, to make findings as to the standard of living during the marriage (the “marital standard”) when setting an alimony award and, as part of the courts’ assessment of the adequacy and reasonableness of the award, to determine whether the award will enable the parties to enjoy a lifestyle that is “reasonably comparable” to that enjoyed during the marriage. Crews v. Crews, 164 N.J. at 26.  Although Crews involved a contested divorce, thereby presenting a full trial record, the Supreme Court felt it necessary to state, in dicta, that the same judicial findings should be made in uncontested cases.  Specifically, the Supreme Court stated inCrews:

The setting of the marital standard is equally important in an uncontested divorce.  Additionally, lest there be an insufficient record for the settlement, the court should require the parties to place on the record the basis for the alimony award including, in pertinent part, establishment of the marital standard of living, before the court accepts the divorce agreement.  Ibid.

            The procedural history in Weishaus is somewhat tortured and will not be repeated at length herein.  However, it should be noted that approximately a year into their divorce litigation, the parties entered into a Property Settlement Agreement.  At the time of the final hearing, the standard inquiries were made, inclusive of those required under Crews, to wit:  whether the parties could maintain the standard of living which was consistent or commensurate with the standard enjoyed by both of them during the course of the marriage.  In response to this question, the wife said “not at all.”  Because the plaintiff-wife stated she would not be able to maintain the marital lifestyle under the terms of the Agreement, the court made the findings required under Crews.  The court addressed the parties’ income and source of cash flow for marital expenditures.[2]  Based upon its findings, the trial court concluded that the plaintiff-wife would not experience a shortfall in the marital lifestyle.  A Judgment of Divorce was issued. The Judgment incorporated the parties’ Agreement, as amended by the court, to include the statement that, “plaintiff can maintain a reasonable and comparable lifestyle excluding any contributions from defendant’s mother.”  Plaintiff appealed. 

            On appeal, plaintiff claimed that (1) the court should not have insisted upon establishing the marital standard of living since the parties had reached an agreement on the amount of support notwithstanding their inability to agree on the marital lifestyle; (2) the two sources of income should not have been excluded from the calculation of the marital standard of living; and (3) the court erred in its ultimate conclusion that plaintiff could maintain a reasonably comparable lifestyle under the terms of the Agreement.  The parties ultimately resolved their differences on appeal and submitted a proposed Consent Order to the trial court.

            The proposed Consent Order vacated the court’s finding that plaintiff could maintain a reasonably comparable lifestyle excluding contributions from the defendant’s mother.  The Consent Order confirmed that they could not agree upon their accustomed standard of living, but agreed nonetheless not to litigate that issue presently.  The parties also acknowledged and agreed in their Consent Order, that should either party thereafter make an application which required the court to ascertain the accustomed standard of living during the marriage, the court would then be required to determine that issue.  It was also agreed that if the plaintiff or the defendant thereafter sought to modify the alimony provision of the Property Settlement Agreement incorporated into the Judgment, the court might then be required to determine, inter alia, if either party was entitled to relief pursuant to Crews. 

            The trial court refused to execute the proposed Consent Order.  The court explained that, pursuant to Crews, trial courts were obligated to make findings as to the marital standard of living  prior to finalizing a divorce, even when the sole issue in dispute was the  marital lifestyle.  The plaintiff sought reconsideration of the trial court’s rejection of the proposed Consent Order, which request was denied.  After the second rejection by the trial court, the plaintiff resumed her appeal.

            An unanimous Appellate Division Panel affirmed in part and reversed in part.  The Appellate Court held that, the trial court inappropriately reduced the marital standard of living to create one that was sustainable solely by defendant’s employment income.  Weishaus,supra, 360 N.J. Super at 289.  Instead, in the panel’s view, the trial court should have assessed the actual standard of living enjoyed by the parties during the marriage, including the parties’ use of investment income and parental cash subsidies.  Ibid.  Notwithstanding that error in the calculation of marital lifestyle, the Appellate Division, citing Crews, held that the trial court properly made determinations with respect to the marital lifestyle as to whether plaintiff could lead a comparable lifestyle post-divorce under the terms of the Agreement.  Id. at 290-92. The matter proceeded to the Supreme Court on the Court’s grant of the plaintiff’s petition and defendant’s cross petition for Certification. Weishaus v. Weishaus 177 N.J. 495 (2003).

            The Supreme Court explained that the basis of their decision in Crews was their desire to ensure that all necessary information was captured properly and accurately in the event of a future motion to modify an agreed upon term and amount of alimony set forth in a consensual agreement.  The Supreme Court stated:

            [w]e were focused, at the time, on underscoring the importance of having the marital standard of living established when the information  necessary to such determinations was fresh and could be presented  readily.  In that respect, we looked to the CIS to capture the necessary information, although we acknowledged the shortcomings of that document for the purpose.  Id. at 26-27.  Our intention was to fashion an approach that would establish the marital standard at a time when it appeared most efficient to do so, namely, at the time of the entry of a Judgment of Divorce.

            It is clear that the motivation of the Supreme Court was to encourage the parties and courts to make marital lifestyle findings at the time of the entry of a Judgment of Divorce, or at the very least, to preserve the evidence necessary to make such determinations in the future.   Although the parties and amici [3] argued that the Supreme Court should discard the Crews requirements concerning the marital standard in all uncontested cases, the Court declined to do so.  The Supreme Court noted the lack of objective evidence of the systemic problems the amici had asserted. Nevertheless, the Supreme Court recognized that, notwithstanding the economy and efficiency considerations that led to the initial directive in Crews, there were valid reasons to “revisit” the issue and to allow flexibility to trial courts when entertaining settled divorce actions. 

            Ultimately, the Supreme Court held that in uncontested divorce actions a trial court must have the discretion to approve a consensual agreement that includes a provision for support without rendering marital lifestyle findings at the time of entry of judgment.  As such, the Supreme Court’s holding in Crews should no longer be read to require findings on marital lifestyle in every uncontested divorce.  A trial court “may” forego the findings when the parties freely decide to avoid the issue as part of their mutually agreed upon settlement, having been advised of the potential problems that might ensue as a result of their decision.  However, be aware of the Supreme Court’s directive that, even if the trial court does decide not to make a finding of marital standard, it nonetheless should take steps to “capture and preserve” the information that is available.

            The Supreme Court’s deferral to the Supreme Court Family Practice Committee for its consideration and recommendation regarding the question of how best to capture marital lifestyle information efficiently and economically should be praised and applauded.  However, until that issue is formally clarified by the Committee and the Supreme Court, counsel, as well as the courts, have an obligation to attempt to comply with the Supreme Court’s directive.  The question is what should be done?  The following are proposed practice pointers to the Matrimonial Bar which may hopefully serve the interest of justice for all involved.

1.      Counsel should insist upon the filing of Case Information Statements in every case;

2.      Counsel should attempt to stipulate to the marital lifestyle in every case;

3.      Counsel should not destroy their matrimonial files at any point in time.  If there is the need to eliminate files from storage after a certain point in time, the files should be returned to the client for safe-keeping;

4.      Counsel should send a letter to each client with a notice advising him or her of the Supreme Court’s directive to capture and preserve marital lifestyle information at the time of the entry of a Judgment of Divorce.  (This notice can be repeated in an attorney’s closing letter.)  Such notice should direct the party to do everything under his or her power to gather the relevant documentary information (for a suggested period of three years prior to the end of the marriage), including but not limited to bank statements, canceled checks, check registers and credit card statements.  The notice could also advise the client  to consider retaining an independent forensic accounting expert to review and synthesize the spending records into a coherent marital lifestyle report (of course, this would not go into a closing letter).  Further, the notice should advise the client that this information (whether or not formalized in a report) should be retained post-divorce.  Lastly, the relevance of this information post-divorce and the ramifications of not having it should be explained.

            Keep in mind that the court still has discretion as to whether or not to forego the marital lifestyle findings when the parties decide to avoid the issue as part of their mutually agreed upon settlement.  The first requirement is that the client’s have been advised of the potential problems that might ensue as a result of their decision.  If such warnings and instruction to retain and preserve the lifestyle data have already been conveyed to the client in a letter, and the court is so advised, this may provide the court with a sufficient comfort level to avoid the marital lifestyle findings, knowing that steps have been taken (by counsel) to capture and preserve the information that is available.

            There are significant policy pronouncements regarding the importance of enforcing settlements that are contained within theWeishaus decision.  Specifically, the Supreme Court stated:

Divorce actions involve personal, even intimate, details of people’s lives.  The parties are often intensely emotional.  Progress toward resolving disputes and reaching a speedy conclusion easily can deteriorate into contentious and difficult interactions that thwart settlement.  Therefore, while settlement is an encouraged mode of resolving cases generally, “the use of consensual agreements to resolve marital controversies” is particularly favored in divorce matters. 

KonKonzelman v. Konzelman, 158 N.J. 185, 193 (1999)

            As an aside, it is notable that one of the criticisms of the Crews/Weishaus mandate with regard to the requirement to make marital lifestyle findings at the time of an uncontested hearing was that it elevated one particular factor above all others.  The Supreme Court’s decision in Weishaus does not mention this particular criticism.

            Lastly, do not forget that the Supreme Court “revisited” Crews, it did not “disregard” it.  The onus has been placed on counsel, not the trial courts, to capture and preserve marital lifestyle information.  Practitioners must heed these directives.