Living Together or Apart — Relevant in Mediation But Maybe Not in Court

{3:48 minutes to read} Courts are now required to consider the following factor, among many others, in making a maintenance award or determining if the statutory amount was unjust: “. . . the existence and duration of a pre-marital joint household or a pre-divorce separate household.”

In English, this means that it is relevant to the Court if a couple lived together before they were married, or if they lived apart for a period of time before starting a divorce action.

In mediation, I’ve encountered these examples:

1. A couple who has been married for 25 years and then living apart for 5 years, but still sharing a joint account into which both salaries were being deposited, with one person’s salary 7 times as much as the other.
2. A couple who was married for 23 years and then apart for 8 years, during which they lived completely separate financial lives, but one earns about half as much as the other.
3. A couple who was only married for 2 years, but had lived together for 10 years before the marriage while sharing all income and assets.

I’m glad to say that in mediation, couples thought about their time together before the marriage and their time apart after the marriage as meaningful because it was relevant to them, even if it was not relevant under the law.

In terms of sharing assets

The legal definition of marital property is property accumulated during the marriage. There is no similar factor for pre/post living arrangements as in the maintenance statue. This means that all of the time, money and effort invested into the other’s purchase of a house before you were married, doesn’t factor into the distribution of that house in divorce.

It has, however, had significance in mediation, because it made sense to the couple to give the “non-titled” spouse an equal share in an asset to which they both contributed, even though under a strict interpretation of the Equitable Distribution Law, it was irrelevant.

In terms of support

I have seen couples consider their pre/post living arrangements as relevant to support, even before the Courts did. Again, because it made sense to the couple to do so:

1. Instead of someone getting support for 10 years after the legal separation, the 5 years during which the one party supported the other was counted.
2. Even though the statutory formula for the couple who were living separate lives for 8 years would have resulted in a maintenance award for the wife, she declined. She was self-supporting and felt the time for maintenance had long passed.
3. Even more significantly to me, the person who was only married 2 years, agreed to pay support to the other party for 4 years, because it was clear that it was needed to help that person become self-supporting.

Sometimes, statutes do catch up with what has been going on in mediation for a long time. And sometimes, they don’t, but couples themselves tend to know what will be best for them.