One need only pick up any newspaper, turn on any radio or television or even have water cooler conversation, even with those who never used to speak about the economy, to know of the serious economic crisis that this country and the world appear to be facing. Even today, we read that the stock markets took yet another tumble based upon the news of increased jobless rates.
These realities will no doubt start hitting the family court system if they have not already begun to hit. Specifically, there will be motions by people paying alimony and child support to reduce their support because they have lost their job or have suffered a significant decrease in income.
In the seminal NJ Supreme Court case of Lepis v. Lepis, the historical standard for a modification of support is the showing of a substantial and continuing change of circumstances. We also know that temporary changes do not form the basis for a modification.
In fact, in order to get relief, a litigant usually had to show that they have made a significant, diligent job search and despite their best efforts, they could not obtain comparable employment. How long this had to be depended on the circumstances, but it was probably more than 90 days, or even more than 6 months.
The question during these times is have we entered a brave new world. Will someone who worked on Wall Street earning $500,000 per year who has lost their job be expected to get comparable employment? Should they? What about the financial professional whose income is based in large part on either commissions or a large yearly bonus that they always used to carry them for the entire year who wont be getting a bonus this year or their commissions are 50% less than last year?
In the past, when someones income was sporadic, the case law and Child Support Guidelines require that you take an average of 3 or maybe 5 years. Is that fair now when doom and gloom about the economy is being predicted? Put another way, is the 3 or 5 year average indicative of what the payor can really earn in this economy? Will the earn at historical levels during the foreseeable future?
If we use an average now, or impute the last income earned, is that fair? Is only the payor being forced to sacrifice in that case (assuming for the moment that they even have the ability to pay the prior support which may be unlikely)? If they are forced to pay support based upon passed income, will they ever get the money back when then show in a year or two or three that their income has not and may never be the same> The answer is that this is doubtful. Is this fair?
While representing the recipient, what choice will attorneys have to argue that the laws of imputation and averaging, as the case may be, must be followed by the Courts? I do not think that we can argue a deviation from the law, to the detriment of our clients.
On the other hand, attorneys for the payor’s have to be bold in their arguments that the existing law is distinguishable based upon the current circumstances. I also think that Judge’s must be courageous in their decisions so that the reflect the economic realities.
If the current economic circumstances are ignored, then I foresee a lot more enforcement proceedings, if not a lot more arrest warrants issue for failure to pay support. In the end, if things continue as they are economically, attorneys and judges should try to work together, creatively, to strive for fairness for all of the parties based upon the economic realities of today.