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This story by Phyllis Maguire was published in U.S. 1 Newspaper on
December 16, 1998. All rights reserved.
Alimony’s New Standard
It’s a difficult job, but someone has to do it and
do it well. In spite of our seemingly endless supply of lawyer jokes,
and in spite of the emergence of attorneys as expert commentators
and television personalities, those lawyers who specialize in family
law — who sort out those problems that tear families apart —
usually work hard and with little or no publicity to help their
through this difficult transition.
"The issues with the children are the most difficult, there is
no question about that," says Barry D. Szaferman (pronounced
managing partner of Szaferman, Lakind, Blumstein, Watter & Blader,
P. C., a firm with 18 attorneys at the Quakerbridge Executive Center
in Lawrenceville. "When parents start drawing the children into
the battle, that’s the most troubling thing an attorney has to
Family law, contends firm associate Jennifer Weisberg Millner, puts
lawyers in a very unique relationship with their clients. "It’s
not as if you are contracting with them to make widgets," she
says. "This is their very personal life, and difficult issues
But one divorce case argued by Szaferman and Millner last spring in
the state Appellate Division was exceptional. Hughes vs. Hughes
statewide attention, and the appeals court decision is being viewed
as a landmark decision by legal experts. At issue: What constitutes
a short-term marriage when the courts decide the level and duration
of alimony support that one spouse must pay another.
In Hughes vs. Hughes the Szaferman attorneys successfully won the
reversal of several Burlington County family court rulings against
their client, Marianne Hughes. The appellate court rejected most of
the lower court’s findings, remanding the case back to Burlington
County to be reconsidered. While a final settlement will take place
sometime in the new year, new interim alimony and child support
figures are expected to be set soon. This will undoubtedly send more
waves from last spring’s appellate decision rippling through New
In 1983 when she was 28, Marianne S. Riedel married Daniel J. Hughes.
She was a voice student and part-time waitress who had dropped out
of college. He was a real estate broker for Century 21, earning
a year. For several months after their marriage, Marianne also worked
as a real estate agent. But she quit in 1984 when their daughter was
born, devoting herself to raising their child and keeping their home.
According to the public record associated with this case, there were
some lean and troubled times in the mid-1980s: Daniel Hughes was
for treatment of alcohol abuse. Later the slump in the real estate
market meant a sharp — though temporary — financial decline.
In 1987, Hughes left his job at Century 21 to form, with two partners,
Metro Commercial Real Estate Inc., a combination of corporations that
act as an agent for shopping center acquisitions and development.
Hughes initially owned only 50 percent of the company — and earned
only $50,000 his first year — but Metro prospered. By 1994 Hughes,
who had bought out his partners in 1990 to become the company’s sole
shareholder, enjoyed an adjusted annual gross income of $248,000.
Marianne Hughes, in the meantime, neither finished her education nor
worked outside her home, though she did take on a role of corporate
wife, sending gifts to her husband’s business associates and
his clients. His income provided the family with an enviable
with the 11-room house with the inground pool in Moorestown, the
and the Audi, the full rack of violin, gymnastics, and horseback
lessons for their daughter. There were sailing trips to Nantucket
and Newport, vacations to Disney World and the Caribbean, as well
as lavish shopping and nonstop restaurant tabs, but there was also
trouble in paradise. In 1993, just a few months after their 10th
Hughes filed for divorce.
The year the Hugheses separated was the same year Barbara Dafoe
"Atlantic Monthly" essay — which she later expanded into
book form — identified America as "the divorce culture."
Thoughtfully taking up the mantle of divorce backlash after Dan
diatribe against Murphy Brown and single motherhood, Whitehead
the country’s 30-year experiment with divorce a disaster, one that
had left a rash of indulgent adults and traumatized children in its
The statistics are grim indeed: in 1960, the divorce rate in the
States stood at less than 1 percent, while by 1988, the odds of a
new marriage ending in divorce had reached 43 percent. According to
the Commerce Department’s Census Bureau, the number of divorced people
in the country more than quadrupled between 1970 and 1996 — years
in which states universally adopted no-fault divorce laws, deadbeat
dads became a national epidemic, and feminists who had championed
liberal divorce codes raised the alarm over the emerging
of post-divorce poverty.
Back in Burlington County, the Hughes’s was one of roughly 29,000
divorces granted in New Jersey in 1996, and one of an annual crop
of 1,150,000 American divorces. Before their final settlement, they
had decided custody issues concerning their daughter through mediation
and had agreed, in an effort to save money, to employ only one
to assess the value of Hughes’s business for purposes of equitable
distribution. That accountant’s report was only one of several things
that went wrong in divorce court for Marianne Hughes.
The accountant valued Hughes’s business at $115,000 — even though
Hughes himself, in 1992, had apparently claimed Metro was worth
Despite Marianne’s contention that the business had been seriously
undervalued, the fact that she had no expert testimony of her own
with which to counter the accountant allowed the valuation to stand.
Also affecting the settlement was the fact that two limited
in which Hughes had a financial stake were not included for equitable
The judge concluded that, out of Marianne’s financial share, she was
responsible for 35 percent of their $115,432 outstanding debt,
a good portion of that was business-related, and $45,000 in back taxes
(or 50 percent of their total tax obligation). Her interest in their
11-room home, which at the time was in foreclosure and listed for
sale at $399,000, was transferred to her ex-husband, who became liable
for all late fees, back interest, and legal and foreclosure fees,
but who also gained complete equity with all tax benefits. The result
was that, after being married for 10 years to a man who consistently
earned almost a quarter of a million dollars a year from his own
there was little in accumulated assets, and Marianne’s share was very
The "pendente lite" (or pending litigation) child support
payments of $1,000 per month that had been set in 1995 became
Even though Hughes’s weekly income was over two and one-half times
the maximum amount given in the child support guidelines, the judge
supplemented the baseline amount by only $18.55 a week, apparently
satisfied with Hughes’s testimony that he would continue paying for
amenities for his daughter, like summer camp, outside of his child
support payments. And claiming that 10 years constituted a short-term
marriage, the judge ordered what the appellate court, in its decision
two years later, would call a "brief and minimal amount of
rehabilitative alimony only — $3,000 a month for 18 months and
then $2,000 a month for another 30 months.
It was surprisingly one-sided, as divorce settlements go.
have said all along that you have to be aware of the intertwining
of marriage and the marketplace and acknowledge the work women do
that they are not paid for," says Nadine Taub, professor of law
and director of the Women’s Rights Litigation Clinic at Rutgers
School of Law in Newark. "But New Jersey has been fairly crude
and cruel about recognizing those issues before." To prepare
for a career as a music teacher, a career she will enter in her
at an entry level salary, Marianne Hughes enrolled in classes at
Conservatory, part of Rider University. To make ends meet, she moved
with her daughter back into a home with her ailing mother in
And to appeal her divorce settlement, she hired Barry Szaferman.
Now 49, Szaferman attended Fairleigh Dickinson
and graduated from Rutgers Law School in Camden in 1973, working for
the state attorney general’s office until 1977. That’s when, with
partners Arnold C. Lakind and Jeffrey P. Blumstein, he established
the firm in Lawrenceville. "When I first started my practice,
I did whatever came through the door — real estate closings and
simple business matters," Szaferman recalls. "I didn’t have
many sophisticated clients at first, but as time went on, I was able
to attract fairly complicated business." Eventually representing
several significant developers and maintaining a career in commercial
finance and litigation, Szaferman was sought out by Marianne Hughes.
"She was looking for an attorney outside of Burlington County
who understood valuation and income issues," Szaferman says,
out that those issues are crucial in divorces involving people who
are self employed. "You’re not dealing with a state employee with
a W-2 where you know what he makes," he continues. "For an
individual with a business, you have to find out what the business
is worth, is he taking a fair salary out of it, what perks are there,
and whether the business enhanced his lifestyle."
Joining him in preparing the appeal was associate Jennifer Weisberg
Millner, 33, a graduate of Lawrence High School, Skidmore College,
and, in 1990, Seton Hall Law School. Clerking for the family division
of Mercer County Superior Court before joining Szaferman’s firm almost
eight years ago, Millner does family law exclusively.
"Occasionally there are clients who specifically want a male
so they choose not to retain me," Millner says. "But I think
women are uniquely qualified to do family law, particularly in the
’90s with the stresses involving children and work." Lawyers who
specialize in family law, says Millner, need patience and an
of family life — and the ability to focus their clients.
issues can become very important to them, so you have to make them
see the overall picture."
In a 61-page brief filed in appellate court on Marianne Hughes’s
in July, 1997, the lawyers argued that the lower court’s decision
"contained numerous errors" that rendered it "incorrect
both factually and in its interpretation of the relevant statutes
and case law." The court’s failure to include Hughes’s limited
partnerships in the financial evaluation of his worth, the brief
resulted in an inaccurate distribution. The assignment of such hefty
chunks of the former couple’s debt and taxes to Marianne had been
unreasonable, given the enormous disparity in their actual earnings
and earning potential.
Child support was inadequate, considering the husband’s income and
the family’s former lifestyle, and the need for permanent alimony
— not just temporary and rehabilitative — needed to be
Handing down its decision on April 29, 1998, the appellate court
Characterizing many of the lower court’s findings as
"inadequate," or "simply unsupported," the appellate
court reversed most of the earlier ruling. Much of the reasoning
the appellate decisions will have far-reaching consequences. One such
decision was the court’s rejection of a reduced child support payment
as the result of Hughes’s willingness to pay directly for amenities
for their daughter. "We see a significant problem in plaintiff
[Hughes] paying directly for these enhancements, with defendant unable
to do so in the event that plaintiff halts payments," the
judges wrote. "The fact that defendant might be incidentally
by the better housing, food, vacations or other attributes of the
child’s lifestyle [through higher child support payments] is of no
In fact, the state’s child support guidelines, Millner explains, were
designed to avoid just such a circumstance. "The appellate court
made it clear that, unlike the lower court, it won’t foster a
where the father is buying the child $100 sneakers, while the mom
doesn’t have the money to pay the rent," she said. "The
were designed to eliminate questions about what are appropriate
and the appellate court insisted that the custodial parent is entitled
to money that is income-driven, rather than expense-driven."
The appellate court also soundly defended the precedent, already
through case law, that "self-support does not mean returning the
supported party to the reduced premarital standard of living"
and that "[b]are survival is not the proper standard" for
determining alimony, but that the economic reality of the marriage
is. "Plaintiff’s obligation to continue to support defendant is
an incident of the commitment he made when he married her," states
the appellate summary. "On remand, the trial judge should
this issue with a view that defendant is to receive permanent alimony,
but perhaps at some reduced rate to reflect a marriage of this medium
It was in addressing that "medium length" of the Hughes’
with its consequent financial ramifications that the appellate court
made its most significant findings. "[W]e take issue with a
marriage being considered a short-term marriage," the appellate
judges wrote, disagreeing with their lower court colleague. "By
today’s standards, it is not." With the length of the marriage
as critical a factor in determining alimony as the couple’s income,
the intermediate-length marriage has always been, says Szaferman,
a gray area.
"Matrimonial lawyers have felt that with a marriage that lasted
less than 12 years, it was very, very difficult to successfully argue
that your client was entitled to permanent alimony," he says.
"We’d usually compromise, getting perhaps a higher percentage
of the house or a slightly lengthier period of rehabilitative
But after this appellate decision, lawyers and judges can no longer
describe a 10-year marriage as short — one in which the issue
of permanent alimony should be automatically overruled.
In providing guidance for how much permanent alimony the lower court
should consider granting, the appellate judges crafted this language:
"because the marriage was of an intermediate length, defendant
need not be supported to the standards of the very summit of the
lifestyle, but defendant also is not to be cast adrift after four
years of rehabilitative alimony."
The appellate court further ruled that it was an error for
alimony to be granted in lieu of, rather than in addition to,
alimony — and that the amount of rehabilitative alimony set by
the lower court was "not commensurate with plaintiff’s ability
to pay, the parties’ former style of living, and defendant’s
According to Millner, the court reached a good middle ground. "It
recognized that since the Hughes’s wasn’t such a long marriage, the
court didn’t tie somebody down to providing the complete standard
of living they’d previously enjoyed," she said. "But at the
same time it was not going to allow him to simply walk away. Instead,
it holds him responsible to maintaining her at a reasonable
The appellate court’s decision was not, Szaferman cautions, any signal
of judicial conservatism or prejudice that marriages should be made
more permanent. But it did strongly reinforce the reality of a
financial relationship, even after a marriage has ended. "The
court really looks at marriage as an enterprise and while one party
may want that enterprise to end, the other party still has to be able
to derive some benefits from it," says Szaferman, who has been
married since 1983 — definitely not a short-term union under the
decision in Hughes vs. Hughes.
"There are two thing going on in terms of this ruling," says
Taub of Rutgers University School of Law. "One is the notion of
partnership continuing after divorce. The other is the recognition
that this woman is now in the position of starting out as a
music teacher. She’s older and her chances of being successful are
diminished, so she’s being compensated for sacrificing 10 years to
a marriage that’s ended." The court’s decisions, Taub says,
the realities of economics and of women’s ability to get a job.
Millner, who had two sons with her husband, John Millner of Millner
Kitchens in Lawrenceville, agrees that the appellate court’s
acknowledges how much earning capacity a woman (or, in rare incidents,
a house husband) loses for every year she spends out of work.
in Marianne Hughes’s position cannot be expected to thrive in the
workforce," Millner says. "And as I think the court correctly
noted, even after she gets her training, Marianne Hughes will not
be able to support herself at the level she had in her marriage."
Szaferman, Millner, and Taub all stress that divorce settlements,
like the marriages they bring an end to, are fact-sensitive to
situations. In particular, Taub points out that relatively few
involve such large amounts of money and such a disparity in income.
But Szaferman notes that the robust economy over the past decade has
raised the standard of living of many families, and Millner questions
whether such disparities in income are really that unusual.
"If you’d asked me two years ago, I would have said you’d see
fewer cases like Hughes because so many families have two working
parents," Millner says. "But I recently read that some working
women are now going back to stay home with their kids, so we may see
more cases like this one."
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