In one of its hallmark songs, the Rock and Roll Hall of Fame band AC/DC proclaimed, “money talks.” For better or for worse, those two words find a way of ringing true in many facets of life, and contested divorce litigation is no exception. Yet during the year-long, or perhaps longer now, pandemic, if you find yourself in the middle of a divorce proceeding you might be questioning whether or not money talks anymore or has instead been tucked away until a time when normal life resumes.
The subject of your lifestyle during a marriage is bound to come up in divorce when you are quarreling over issues of child support and/or spousal support. For example, in the child support arena, when considering whether or not to award support above New York’s statutory cap for combined parental income, the law in New York considers the standard of living that a child would have enjoyed had the family unit not dissolved.
Then there is spousal support, which your lawyer will tell you, if being up front can be an ocean of uncertainty. You may have heard that New York, some years ago, established formulas for determining spousal support. But in high-net-worth cases, with incomes above and beyond the statutory cap for spousal support, those formulas can quickly give way to a focus on many factors including, you guessed it, the marital lifestyle (a fancy way of describing how you and your family lived economically during your marriage).
What do we mean by living, or lifestyle? What type of residence do you have and in what neighborhood? Do your children attend public or private schools? Does your family vacation, and if so, how many times per year and at what cost? Where do you dine out, and how frequently? At which stores do you buy clothing for you and your children? Do you belong to a gym or other private club, and if so, is it “high end”? Or, maybe you have a personal trainer at home?
There are many considerations that make up a lifestyle. Just imagine your day-to-day spending being examined under a microscope—including everything down to how much you spend on personal grooming—and trying to break that all down into a monthly number that represents how you spent during your marriage.
There’s a particular wrinkle to consider now, and it is a conundrum that is being faced today by both non-monied and monied spouses in the midst of divorce. This anomaly, specifically, is a “pandemic lifestyle”—one that has been adjusted to account for the restraints on travel, dining out, and what we once considered normal living. Should the “pandemic lifestyle” be a guide for your lifestyle going forward? Among many factors, consider that you and/or your spouse may well have seen your income decline or, worse, lost employment altogether. Should this standard be used to determine support and/or as a factor in its determination?
While it’s true that spending during the pandemic may well not equate with spending before the pandemic, it remains to be seen how courts are going to decide what constitutes the marital lifestyle in these extraordinary times and thereafter. Post-pandemic, does one need to spend $200 a month going to the movies when most movies are now streaming on a service that costs $15 a month, or is a $300 a month gym memberships appropriate when a Peloton has been purchased and was sufficient for 15 months. Then again, you may be spending more on unreimbursed medical expenses such as therapy and other expenses that were not a part of your budget before the pandemic. There are arguments to be made on both sides of this equation. Some will argue that you can’t ignore what came before—the lifestyle that once was. Others will argue that you can’t ignore the unprecedented changes resulting from the pandemic when fashioning a support award.
While this author wishes he could promise more certainty in the spousal support arena, the pandemic and its fallout in terms of impact on your lifestyle are likely to make even more nuanced what has already been a trying analysis. Whether you are the non-monied or the monied-spouse, talk to your lawyer about these issues if support is disputed. If there’s anything this pandemic experience has taught us, it’s that we should not make assumptions. All of us—lawyers, clients, and the courts—are navigating how best to adapt the pre-pandemic legal implications of divorce (which were complex enough to begin with) to the post-pandemic world.