34. I owe my wife $30,000 in child support and alimony arrears. These arrears are almost 25 years old. My ex-wife has been off my back for 20 years, however, now she is on the “war path†to collect these ancient arrears. Do I have defense to her collection efforts to collect these ancient arrears?
Yes, you certainly do have an equitable defense to the collection of these very old child support and alimony arrears. A very on point case is Adler v. Adler, New Jersey App. Div., February 9, 2009. Here, the family court judge ruled that the ex-wife’s motion collect alimony and child support arrears was barred on the doctrine of laches.  The wife waited 28 years before she instituted legal action to try to collect past due support payments. The family court held that the wife waited way too long to try to collect these past due support. The case was then appealed. The Appellate Division upheld the family court.  In summary, the Appellate Division held that the wife’s claims to collect the past-due support was barred based upon the doctrine of laches because she waited 28 years to try to collect these arrears.
35. I am a stock broker and I was recently divorced. At the divorce trial, the judge averaged my yearly income for the past five years, and he then used the mean average of my yearly income to establish a ridiculously high alimony award. Two years later, my yearly income has been slashed in half. Is the concept of income averaging a fair and reasonable way to determine alimony?
Trying to negotiate an alimony award is a very heated and debated type of art form. Many people lose their temper and some people even pretend to faint when they are told how much alimony they will have to pay. When a court must determine the length and the amount of an alimony award it is faced with a most difficult task. Determining alimony is not as clear cut of a task as it has been in past generations. In the prior generations, a husband would often have a steady job at a corporation, and he would earn steady paycheck. Now fast forward to our generation X;  companies are now brought out and sold at a rapid pace, they go under in a blink of an eye, and they  also disappear in an instant. Moreover, companies get rid of employees “in a jiffy†just like they are a worn out business machine such as a copier or a fax machine that no longer works. Corporate America certainly does not value human resources as much as they used to. Given this unfortunate scenario, the income of many New Jerseyites fluctuates on a yearly basis. A stockbroker may have earned a high six figure income for most of the past decade. However, after the recent market crash many stockbrokers will be fortunate if they even approach a six-figure income.
A never ending debate is what level of support should a payor’s income be set at to determine alimony if his income fluctuates. Many judges use income averaging to determine a base level of income to determine alimony. Basically, many courts will take the last three to five years of that person’s yearly income and then average them. Unfortunately, in my professional opinion, I believe that there is an over reliance of income averaging to determine alimony. There are many divorce cases wherein income averaging simply does not produce a fair and equitable result. Industries crash and burn. People are downsized. Entire industries are outsourced to India. Companies go under. Income averaging just does not take the X factor into consideration. Thus, a strong argument can be made that income averaging is too simplistic of a formula to determine the correct level of income to determine alimony.
An insightful case is Platt v. Platt, A-1555-04T21555-04T2. Here, the husband/plaintiff and wife/defendant were married in 1980. They had two children. The parties separated in 2001, and they separated in November of 2001. The plaintiff also filed for divorce in 2001. During the marriage, the husband opened up an auto repair shop called Platt’s Performance Plus. At the divorce trial, the court determined that the husband earned $100,000 of annual income, and he awarded the wife $250 week in permanent alimony and child support of $123 per week. The court based this ruling on averaging the companies business income over a five year period.  The husband strongly disagreed with this ruling. He believed this figure of $100,000 was not a fair number, and also that it did not reflect the true income of the company. Thereafter, the husband appealed. The main thrust of the defendant’s appeal was that the judge erred in averaging his income in fixing alimony and child support. The Appellate Division upheld the rulings of family court. The Platt court further held that in the circumstances of this case it was completely logical and reasonable to average the plaintiff’s income over a five year period. Thus, the court held that there was no abuse of discretion in the family judge’s analysis and conclusion.
In summary, many courts are entirely sold on the legal principles of income averaging. However, in many types of industries and fields the principles of income averaging does not always produce a fair and reasonable result. Each type of industry is fact specific, and a different twist of income averaging must be used for each one. In some fields, income averaging may provide the perfect solution to address many pernicious alimony issues. However, in other fields the principles of income averaging may be utterly useless to address any Lepis issues. In closing, using income averaging certainly has its place in determining alimony. However, it should not be the sole method used by a court to determine a reasonable income level for a payor who is either self-employed, or who is in a field wherein his income fluctuates. Just like everything else in the law, income averaging should only be used on a case by case basis. In the stockbroker scenario, if the court followed the Platt reasoning, then it would use the principles of income averaging. However, if the court used basic common sense, then it would realize that given the mini-depression, and the carnage on Wall Street, using income averaging to set support figures for a Wall Street worker would only yield a fair and just result.
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