The March 15, 2011 decision of Westchester County Supreme Court Justice Francesca E. Connolly in Margaret A. v. Shawn B., raises a number of questions and invites lessons to be learned. Here, the Court applied the recently-adopted temporary maintenance and counsel fee statutes to a recently-terminated substantial wage-earner.

The parties were married in June, 2007, and have three children. The plaintiff-wife is a 32 year-old homemaker; the husband, a 46 year-old Harvard MBA, terminated as a corporate Vice President in October, 2010. The wife commenced this divorce action two months later on December 30, 2010; after the October temporary relief amendments became effective.

The parties had lived together with the children in the rented New Rochelle marital residence until the wife was granted a “stay-away” Temporary Order of Protection in December, 2010. The husband went to live with his parents. Cross-offense proceedings remain pending.

The income tax returns indicated that the husband had earned $300,000.00 in 2007, $172,024.00 in 2008, and $256,909.00 in 2009 (the most recently filed income tax return). The Court was made aware that the husband had earned $156,676.00 for the first 42 weeks of 2010 (approximately $194,000.00 annualized) when he was terminated and given a $115,000 severance package.  The husband claimed to have been diligently seeking new employment. However, the Court was dissatisfied with his conclusory allegations.

Asked to award pendente lite relief, the Court first applied the temporary maintenance formula (D.R.L. §236B[5-a][c]), using the husband’s 2009 C.S.S.A.-adjusted income.  Justice Connolly found that it was not unjust or inappropriate to award the wife the calculated $6,217.42 per month ($74,609.00 per year).

Then, deducting the awarded temporary maintenance from the husband’s 2009 adusted income, Justice Connolly awarded the calculated $4,207.17 per month ($50,486.00 per year) in child support, again finding it just and appropriate to do so.  The Court declared the husband could take the three tax exemptions for the children.

Completeing the award, the husband was directed to maintain the health and life insurance policies, pay 100% of health care add-on expenses, and 50% of the “children’s reasonable add-on expenses, including pre-school and extra-curricular activities.”

From her $10,424.59 combined monthly award, the wife was directed to pay the marital residence, personal and non-listed children’s expenses.

Despite the husband’s past substantial income, there was a “lack of assets to pay for litigation fees.” The wife, represented by Frank J. Salvi, Esq., of D’Agostino & Salvi, sought $7,500.00 in temporary counsel fees.  The husband had provided a $10,000.00 retainer to his counsel, Raoul Felder and Partners, P.C.  In light of the limited assets of the parties, the Court noted that the temporary award, istelf, shifted the resources of the parties sufficient to rebut “the presumption that the [husband] is the monied spouse.” D.R.L. §237(a). However, in light of the husband’s Harvard MBA and his “ability to return to work and earn a substantial income,” Justice Connolly awarded the wife $5,000.00 of the $10,000.00 needed to match the retainer paid to the husband’s counsel.

As it would appear the husband’s severance package is at least in part a marital asset, the unemployed husband, without a hearing, has been made the sole guarantor of the family’s interim finances (at the end of the case, any arrears in support will be awarded to the wife).

As the loss of employment, after all, was a major event in the short life of this economic partnership, should not the partners share the loss?

While conclusory allegations of efforts to obtain employment should not be accepted, considering the disastrous consequences now falling on only one of the parties, perhaps an immediate hearing should have been held on the husband’s presumed ability to immediately obtain the $250,000.00-per-year job upon which the award was based.  It should not be essential at this stage of the proceedings to submit expert testimony on the job market or extensive documentation.

With a more cynical view, I cannot help but consider the husband’s re-contemplation of his decision to marry three years ago, already then having the now 5-year old child, and with the 3-year old twins either on their way or just born.  What pieces of the puzzle are we missing to explain the husband’s income and the lack of assets?

How carefully every act, every word by both the parties and their counsel must be considered, acted upon and artfully presented to the Court!