Thursday, December 13, 2012

Too little, too late to claim alimony and child support

Provisions in a final judgment of divorce will not always stand the test of time. In the New Jersey case, Pack v. Beckerman, 2012 WL 3930384, the judge held exactly that. The parties married in 1966 and had two children. In 1973, Husband abandoned Wife and the two children, and in 1974 Wife obtained a Judgment of Divorce by default. The trial judge awarded her all the marital assets, and the final judgment of divorce stated that she would not be precluded from seeking alimony or child support at a later date. Wife claimed that she thought Husband had left the country, and he was not located until 2010 when the parties’ son located Husband through an internet search.

In February 2011, Wife filed a motion for spousal and child support based upon the terms in the final judgment of divorce. In March 2011, the trial judge awarded Wife alimony for the years after Husband left until Wife remarried and awarded child support. Husband filed a motion for reconsideration in May 2011. The judge granted Husband’s motion based upon the doctrine of laches.

The doctrine of laches is the failure to assert a known right within a reasonable time which causes prejudice to the opposing side. In determining whether to apply laches, key factors are used, including length of delay, reasons for delay, and change of position by either party during the delay. A delay alone will not be sufficient, and the court must balance all the factors to determine whether or not to apply the doctrine of laches.

In finding the doctrine of laches applied to the case, the judge reasoned that for thirty-seven years Wife had not sought any type of support from Husband. At the present, it would be impossible for the court to determine the standard of living at the time of divorce.

Furthermore, Wife presented no evidence that she had been looking for Husband during the years he was gone. During that time, Wife did not press the court to enter any awards for child support or alimony. The judge found the delay was much too long to allow Wife to succeed on her motion. Wife was seeking to apply for alimony and child support, not ask for the enforcement of a previous award; thus, aggravating the prejudicial impact of the delay. Too much time has passed to gather reliable financial information to demonstrate an appropriate amount of alimony or child support. Therefore, an award of support would likely be prejudicial to Husband.

If you have questions about a final judgment of divorce, you should contact an attorney.

Written by Allyson Lutley, law clerk at Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

No comments: