By Joshua E. Stern

This one topic isn’t especially exciting, but it’s ALL CAPS important.  It’s not uncommon for a final family law judgment to leave at least a few issues unresolved.  In divorces, it could be issues of maintenance or a contribution to the minor child’s college expenses. In custody cases involving young children, it could be the issue of the parenting time schedule once the child starts school.  In fact, the issues can vary quite a bit.  Some unresolved issues are identified in judgments as being reserved, meaning that the court recognizes the issue must be resolved, but cannot or will not resolve it at the time the judgment is entered. 

Here’s where the twist comes in: a reserved issue must be treated as a new matter if either party seeks judgment on that issue. So, if each parent’s contribution to their child’s college cost is reserved, either parent will need to file a petition to go before the court and seek a judicial determination of what each should pay.  The court will then consider the facts and circumstances of the parties as they currently stand and make a ruling.

Reserved Maintenance

To use reserved maintenance as an example: if maintenance (also known as alimony or spousal support) is reserved in a judgment for dissolution, the would-be payor has no obligation to make a payment until ordered to do so, and has no obligation to pay retroactive maintenance until ordered to do so.   By reserving the issue, the court isn’t saying that there are or are not grounds for maintenance.  The court certainly isn’t suggesting that it would consider ordering maintenance.  Reserving an issue means it is, more or less, unaddressed.

Let’s illustrate the reserved maintenance example: husband and wife get divorced.  Wife gave up her career as an actuary to raise the couple’s children and was dependent on husband’s income.  Let’s also assume that wife has a strong case for maintenance but would rather not deal with husband anymore and reserved maintenance during the divorce.  Wife has trouble reentering the workforce and ultimately finds that she can’t support herself.  Wife can’t show up in court and ask for maintenance.  She must file a petition and begin the legal process.  Accordingly, husband will have a right to respond and the case will either settle or go to hearing. 

The furthest back a retroactive maintenance order can go is to the date of filing the petition, not to the initial date of divorce.  So wife cannot correct for her decision to reserve maintenance.  The furthest back husband will be liable to wife for maintenance will be the date that he was served with her petition for maintenance.  Thus, the longer it took wife to realize she could not support herself, the worse off she is.

Additionally, a court may exercise discretion regarding awarding retroactive maintenance to the date of filing the petition.  That means there’s no guarantee that wife will receive a retroactive award to the date of filing the petition for maintenance.  Last, if the circumstances of the would-be payor have changed, it’s possible the court will not award maintenance at all.  Since the issue was reserved, the court will assess the facts and circumstances of the parties at the time the matter is brought back before it.  What was once a sure-fire maintenance award may now be beyond wife’s grasp.

Reserved Children’s Expenses

This can be especially problematic when it concerns dividing expenses.  For instance, let’s say that two parents share joint custody of their child through a parentage case, but that neither parent has much of a relationship with the other.  The final custody judgment orders each parent to pay for half of the child’s expenses, but reserves judgment on the matter of the child’s school expenses because the child is not in school and won’t be for a few years.  The child starts school and the father, who has residential custody, begins asking the mother to contribute to the cost.  She promises that she’ll start, but never does.  A full year goes by, the father is under increasing financial strain, and finally hires an attorney to file a petition for contribution to the child’s school expenses.  The mother will almost certainly not have an obligation to pay for the child’s incurred school expenses as they predate the filing of the father’s petition.  It does not matter that the father asked or that the mother said that she would contribute.  Further, even though the parents have split all of the child’s expenses 50/50 from the date of birth, the father must still argue that such a division is fair and that the mother can afford to contribute as much.  There is no formal presumption that she can.

No matter what your relationship with the other party in your case, if an issue is reserved, it is important to talk to a lawyer before the issue becomes urgent.  Filing a petition does not mean you and the other party will begin fighting.  However, filing the petition may mean that you have preserved some of your legal rights.  As always, feel free to contact my office with any questions you may have.