Modifying New Jersey Support and Alimony Orders – What is a Change of Circumstance and How Do You Prove It?
Most parties who have experienced a New Jersey Divorce where the parties’ agreement or the Court’s Judgment provides for alimony and child support payments have been advised that the alimony and child support obligations may be modified upon a showing of a “substantial change in circumstances”. In fact, the modifiability of alimony and child support Orders has long been the law in New Jersey and the requisite “change in circumstances” standard and procedure were established in the well-known case of Lepis v. Lepis, 83 N.J. 139 (1980).
However, many, if not most, alimony and support payors have learned that this “change in circumstances” standard has been very difficult to attain in New Jersey Courts. Our Courts have made it clear that temporary changes in circumstances (e.g. temporary layoffs, reduction in income due to sales volumes or market conditions, etc.) will not result in modifications of alimony and child support obligations. Instead, New Jersey matrimonial judges insist upon a demonstration of substantial and permanent changed circumstances which “have substantially impaired the support payor’s ability to support himself or herself”.
There is no question that with the downturn of the economy in recent years, there have been significantly increased numbers of cases in which former spouses attempt to modify or terminate support obligations after a loss of a job or a substantial reduction in income. Some judges have recognized that the “substantial and permanent” requirement unfairly prevents many parties who are legitimately unable to pay support Orders from obtaining a Court-ordered reduction. However, for the most part, New Jersey Courts still require greater proofs than simply a layoff or a temporal reduction in income. Although some judges have made Orders which suspend the enforcement of support Orders during the temporary time period while arrears continue to accrue, few judges have been willing to modify or terminate alimony or child support Orders without the permanency standard being met.
Two recent cases heard by the New Jersey Superior Court, Appellate Division (both decided February 5, 2014) provide some further guidance on the support modification standard. In the matter of Turner v. Turner, the Appellate Court considered an appeal brought by the support payor after the Trial Judge denied the motion to reduce support obligations. In this matter, the payor obtained a new job in Germany, where his salary was reduced and where he claimed that his living expenses were much higher than in New Jersey.
The Appellate Court agreed with the Trial Judge and affirmed that decision based on the following:
- The support payor demonstrated insufficient efforts to find alternative employment. The Appellate Court agreed with the Trial Judge that the support payor should have provided copies of all of his job applications from the time that the support payor first lost his job. The Court wanted to see that the support payor had applied for jobs with employers seeking skills comparable with the support payor’s prior training and work experience. The Court also expected the support payor to provide all of the rejection letters from these potential employers.
- The Trial Judge and the Appellate Court were also critical of the support payor since he unilaterally reduced his support obligation before making his application to the Court.
- The Appellate Court also relied upon the New Jersey Supreme Court case of Crews v. Crews, 164 N.J. 11 (2011) which made it clear that the Courts should consider the supporting spouse’s “property, capital assets, and capacity to earn…by diligent attention to his [or her] business”.
Also, on February 5, 2014, the Appellate Division considered the matter of Oliver v. Oliver. In this case, the support recipient filed a motion to increase child support, alleging that she could not continue to earn the same level of annual income which was imputed to her at the time of the divorce. The Trial Judge agreed with the support recipient and increased the support payor’s obligation based upon the recipient’s claim of a reduction in her income of more than fifty percent. On appeal, the support payor argued that the Trial Court failed to take into account the deliberate actions of the support recipient and her failure to seek or accept work following the termination of her employment.
The Appellate Court agreed with the support payor and reversed the Trial Court’s decision. The Appellate Court ruled that the Trial Judge should have considered the argument that the support recipient was underemployed because she failed to seek work at an income level comparable to that used to calculate support at the time of the divorce.
The lessons from these two cases are clear. When a party seeks a modification of support in New Jersey based upon changes of income, it is necessary to carefully document the causes of the reduction of income and the efforts made to obtain new employment in the party’s field of employment. The party seeking the modification must keep accurate copies of all documents related to the job search. Bald assertions of a reduction of income will not result in a reduction of support. Further, the party must demonstrate that he/she made use of his/her financial resource. Finally, it is important that the support payor maintain the support payments as ordered until an application is filed with the Court.
Barry Chatzinoff, Esquire has been representing South Jersey residents in Matrimonial and Family Law matters for more than 30 years. www.ChatzinoffLaw.com
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