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NJ Family Legal Blog Pertinent Information As It Relates To New Jersey Family Laws

Alimony Modification – A Judge’s Checklist

Posted in Alimony, Child Support, Divorce, Interspousal Agreements, Modification, Practice Issues, Property Settlement Agreements

Most people are aware that a supporting spouse may be entitled to modify an alimony obligation upon a showing of “changed circumstances.” However, many people do not know that the “leg-work” that they have to do to set themselves up to succeed on such a Motion begins long before the parties ever go to Court, especially if a supporting spouse is asking for relief on the basis of a purported job loss or reduction in income.

Below is a non-exhaustive list of items that a Judge will look for when a supporting spouse is requesting to reduce his or her alimony obligations:

• Has the applicant proven that his/her circumstances have changed such that he/she would be entitled to a child support or alimony reduction – Common scenarios constituting changed circumstances include:
       o A reduction in a party’s income;
       o Illness;
       o Retirement;
       o The receipt of an influx of liquid assets;
       o Cohabitation of the supported spouse.

It is always a good idea to keep termination records, communications with a former employer, evidence of any severance package, any doctors’ reports and notes if the applicant is alleging a reduction in income because of illness, as well as documentation regarding assets, debts, and expenses.

• Has the party seeking modification proven that his/her changed circumstances are permanent – The lack of permanence of a supporting spouse’s circumstances standing alone can be a sufficient basis upon which to deny an application to modify support. The New Jersey Supreme Court has held that a spouse’s temporary unemployment was insufficient to justify a child support modification.

To aid the Court in this analysis, the supporting spouse should gather any documentation that would prove that a change is more than temporary, for example, articles or other sources regarding a permanent downturn to the individual’s chosen profession.

• Whether the change was involuntary or voluntary – If the applicant fails to establish that he or she is involuntarily underemployed, the trial judge may impute prior earnings, which are evident of capacity to earn. The applicant should be aware that if he or she quits his or her job or accepts lower paying employment, that party will not be permitted to avoid his or her obligation to pay support regardless of a finding of any good or bad faith in the employment change. Similar principles apply where, although the initial change in employment may be involuntary, the party nevertheless decides not to remedy the situation.

An example of what the Court may be looking for is records kept by the application of a job search. This will enable the Court to form a reasonable basis to conclude that the party undertook steps to remedy his or her situation.

• Whether the applicant has provided evidence that he or she has made efforts to mitigate any perceived losses – It is not enough that a supporting spouse demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances. In other words, a supporting spouse has an obligation to find employment that will not produce a diminished earning capacity to the detriment of the payee spouse.

Some examples of what the Court may be looking for are: evidence as to the names of persons contacted that would aid in the mitigation of losses; the frequency of such calls; other jobs applied for; potential certification degrees to advance marketability to make up for any lost income, etc.

Obviously, the facts of a specific case will require that an applicant produce evidence that is tailored to the relief they are requesting. However, the above is just a glimpse in to the threshold analysis – a check-list so to speak – that a Court likely will undertake before a supporting spouse ever steps foot in to the Courthouse. Keeping impeccable records is therefore of the utmost importance in the months that precede such an application to modify support. Without the necessary evidence, your application may fail as a threshold matter.

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.