Posted on March 02, 2009 in Family Law
In today’s difficult economic environment, with layoffs, salary reductions and unemployment a harsh reality, many people are finding it difficult or impossible to meet their alimony or child support obligations. Worse, there is a tremendous fear as to what a court will do if someone can no longer afford to pay the court ordered or agreed upon level of support because of a job loss or salary reduction.
Historically, the simply remedy was to file an application to the court for a reduction in support based on the concept of "changed financial circumstances". Lepis v. Lepis, 83 N.J. 139 (1980). Not surprisingly, these motions are usually opposed by the party receiving support for a variety of reasons.
To successfully lower support payments, the party making the request has to convince the court that the change of financial circumstance is significant and not temporary. "Temporary circumstances are an insufficient basis for modification." Innes v. Innes, 117 N.J. 496, 504 (1990).
In practice, this means that if you have qualifications, prior employment and skills that allow you to earn a living, just being unemployed is insufficient, unless you can show that you have been unemployed for a long period of time (several months) and can prove that you have made a thorough and diligent job search. In the meantime while you are unemployed and looking for a job, the court will still expect you to meet your support obligations out of any savings, investments or assets you may have.
If you cannot find a comparable job to the one you did before and have to take a lower paying job, not only will the court need to be convinced that any reduction in income is substantial, but will also require proof that the job that you found is reasonable based on your background and qualifications and that you are not taking a lower paying job to lower your support obligation. As stated by our court’s, "where a layoff is followed by a shift to a job that does not draw on prior skills and experience, the obligor must explain that choice with reference to other options explored and efforts to find work with comparable pay." Storey v. Storey, 373 N.J. Super. 464, 472 (App. Div. 2004).
Translated – when someone files an application with the court to lower a support obligation as a result of a changed financial circumstance, you need to be prepared to prove that the change in financial setting was beyond your control and that you used best efforts to find replacement employment and that the employment ultimately found is reasonable based on the market, etc.. Most of all, be prepared to prove this change with clear documentation. If you are laid off, keep copies of all the paperwork to show what has happened to you, and keep copies of every job application you make, who you speak with, the job applied for, salary and any feedback provided. Additionally, the court will require the preparation of a new Case Information Statement that details all your assets, debts, living expenses and income.
Family courts in New Jersey are courts of equity that have to balance the interests of both parties i.e. the ability to pay against the right of a child or ex-spouse to be supported. In today’s difficult times, more applications for lowering of support for changed financial circumstances are likely and the key to success will be preparing papers for the court that are clear, concise and detailed….. simply telling the court who you spoke with and what jobs you applied for is a recipe for failure.
This post was previously published on my New Jersey Divorce Law Blog. For a consultation on any New Jersey family law matter please contact me at 973 379 9292. Further information on the law firm of Diamond & Diamond, P.A. can be found on our web-site.