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Published in U.S. 1 Newspaper on June 28, 2000. All rights reserved.
Alimony Revisited: Dale Console
Divorce court judges are being directed to more clearly
explain how they determine alimony, thanks to a state supreme court
case brought by Dale E. Console. Because of this May 31 ruling,
says Console, dependent spouses are more likely to be able to retain
the standard of living they enjoyed during the marriage. Some predict
that spouses unhappy with their current alimony payments will be able
to petition the courts for higher amounts.
Console has left the firm of Ulrichsen Amarel & Eory to open a matrimonial
practice at 4454 Main Street in Kingston (609-683-0003; fax, 609-683-3930).
She graduated from Kirkland College, Clinton, New York, in 1974, and
went to Rutgers/Camden for law school. A fellow of the American Academy
of Matrimonial Lawyers and certified by the state supreme court as
a matrimonial law attorney, Console has devoted her 15-year career
to matters of divorce, child custody, domestic violence, child support,
and alimony. In the appellate division of Superior Court she clerked
for Judge Virginia Long, now an associate justice on the state
supreme court, and Console has argued two cases before the state supreme
court. Her husband, Mel Narol, does commercial litigation and
sports law at Pellettieri Rabstein & Altman at Nassau Park.
Setting alimony equal to the standard of living has always been the
law, Console says, but until now judges did not have to clearly explain
how they arrived at the alimony award. Console represented Barbara
D. Crews in Crews v. Crews, and Justice Jaynee LaVecchia, the
newest appointee to the high court, wrote the decision. “It will
change how we do alimony in New Jersey,” says Console. “Judges
will have to come up with lists of questions, and attorneys will have
to put this information in agreements. The matrimonial community is
abuzz over this.”
An article in the June 5th issue of the New Jersey Lawyer says that
the ruling “presents a possible field day in reopening past alimony
decisions and perhaps taking tougher stances as future divorce cases
unfold. Judges, lawyers, and litigants now must place on the record
the standard of living during the marriage.” (The full text of
Crews v. Crews is available from New Jersey Lawyer at 800-670-3370,
reference No. 5956.)
Console took the case, Crews v. Crews, after the original trial at
which Bergen County judge Roger Kahn presided. Kahn had described
the lifestyle as “lavish” but set rehabilitative alimony at
just $800 a month for three years, predicting that within that time
the spouse could get a job that would pay $26,000 annually, and that
this would maintain the lifestyle.
“My client had a budget, not contested, in excess of $126,000
a year, including the mortgage. They had a house in Vineyard Haven,
ate out a lot, shopped in the best stores. They were married 14 years
and had two children, and the original order was $18,000 a year for
child support,” says Console. “My client’s ex-husband owns
Benjamin Books, a national chain of airport bookstores, and just sold
the business for $19 million gross.”
“One judge I know said this will put an end to Recently Acquired
Income Deficiency Syndrome, when the husband claims poverty at the
time of settlement and then goes back to the income they had before,”
says Console. The new ruling gives the dependent spouse (usually a
woman) the right to return to court for a bigger share of her ex-husband’s
new-found wealth if — and only if — this additional money
would bring her up to the standard of living she had during the marriage.
She could not ask for alimony that would allow her to surpass the
previous standard.
“Family judges were put on notice that it is the standard during
the marriage — not at its end — that determines what the dependent
spouse will receive financially,” says the article. As LaVecchia
wrote, “The importance of establishing the standard of living
experienced during the marriage cannot be overstated. It serves as
the touchstone for the initial alimony award and for adjudicating
later motions for modification of the alimony award when `changed
circumstances’ are asserted.” Her decision clarifies a 1980 decision
in Lepis v. Lepis.
Those opposing the new ruling note that it adds yet another opportunity
to litigate and slow down a settlement procedure. “It eviscerates
Lepis,” said Francis W. Donahue, the Short Hills-based attorney
for Robert B. Crews Jr. “Courts up until this decision have never
said an amount of money or child support allows a person to live comparably
[to the lifestyle during the marriage].” He forecasts that spouses
will deluge family court with motions to reconsider old alimony decisions.
Console said the decision was the most important in divorce cases
in 20 years: “It’s a real strong statement of policy on what dependent
spouses should be getting.”
— Barbara Fox
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