Though we have blogged about this issue in the past, as it is particularly topical given the article in today’s NJ Biz that New Jersey area (including the New York Metropolitan area) job losses are outpacing the national addresses.
As noted on prior job posts. the standard for modifying support is that there has to be a substantial and continuing change of circumstances. Moreover, in order to get relief, you must document your job search efforts to show the court that you have made a good faith effort to find a new job.
When a client loses their job, the following things should be done:
- Retain all documentation from the employer showing that the job loss was involuntary. If there is a severance agreement and any other documentation, that should be maintained as well as the final paycheck showing the severance received (if paid in a lump sum).
- Keep a detailed log of all efforts made to find new employment with as much information as possible (who you contacted, when you contacted them, what they said, etc.) If the communications were in writing, keep copies of all emails, resume’s, cover letters, rejection letters, if you applied for a job on lie (i.e. Monster.com), confirmation that you applied for work.
- If the problem is industry wide, any newspaper, trade or other articles or documentation showing that the industry has contracted or is having problems.
The question arises regarding what you do when offered a job that is not consistent with your prior earnings. If you have been out or work for a short time, this creates a tough decision about whether to take this job or wait. If you do take this job, my suggestion early after losing a job, my suggestion would be to continue your job search if at all possible.
If you have been out or work for some time and you have made a good faith job search, while possible, I find it hard to believe that a court would penalize someone for taking work – especially in this economy.
What happens if you take a job in another field? There is a reported decision that found that someone who was in computers and then took a job in massage therapy was not entitled to relief. I think that whether relief will be granted in this case will be based upon, how long you were out of work, and the good faith nature of the job search.
I think people who could have a harder time are those who, after losing a job, have decided to start their own business, in a related field or perhaps in some other field. The choice to become en entrepreneur will present difficult problems for a court, especially when the income is nominal, as is often the case in a start up business. In these cases, the good faith nature of the job search may come in to play, however, I suspect that a court will impute income to that person. If the imputation is consistent with prior employment, which very well may be the case, because what other information will a Court have, that is probably not fair if we are dealing with a job loss caused by the current catastrophic economy. If not that number, what is fair.
In these cases, lawyers and judges are going to have to be more creative. I think that the concept of income averaging, as previously blogged about, may very well be unfair given these trying times. Perhaps the remedy is for parties to "ride along" together, sharing income information yearly, if support is going to be reduced (or set a a level based upon income lower that was earned historically). Traditionally, court’s were reluctant to Order the yearly exchange of income information post divorce. However, given the current times, that may be the most fair way to deal with support where income is reduced. When the income gets back to prior levels, or perhaps as it increases, maybe there can be reviews and self-executing increases. There are many ways to to this, and these are only examples.
Family law issues involve complex choices and decisions, and alimony and child support in these trying times is no exception. For more information regarding this issue or guidance on other family law issues, contact an attorney in Fox Rothschild’s an attorney in Fox’s Family Law Practice or visit us on the web at www.foxrothschild.com.