It is no secret that our country as well as the global economy is in the midst of a downward turn. Jobs are being lost in nearly every industry and the financial world has been turned upside down.

These economic global problems have touched nearly everyone of us. For those who have a financial obligation to support a former spouse or children, the failure to comply with court Orders pertaining to their financial obligations could have dire consequences.

It is not uncommon for a new client to ask, “Will the judge really understand my situation?” or “Am I going to get a break from my financial obligations or will I be spending money on these proceedings in vain?”

Up until recently, this was a question that received different answers from attorneys and judges across this state. The courts had not handed down much guidance on whether they were viewing the current economic crisis as permanent or something temporary that would pass. Attorneys were armed with an understanding of this global problem as it affected their current clients who were in the midst of the divorce process. The stickier question pertained to those individuals who had been divorced for months or even years and could no longer afford to pay that which they agreed or had been ordered to pay.

When filing an application to recalculate or terminate a support obligation, it is the burden of the party requesting the change to first prove to the court that the circumstances have changed significantly from the time of the original support obligation Order, that a review is necessary and fair. If the party requesting the change can show changed circumstances, the court can review the support obligations. For child support, the same standard would apply as that which was used originally. The income of the parties (including if alimony is paid), age of the children, and amount of overnight parenting time with the non-custodial parent, are the most common considerations. In cases where applicable, judges will look at other items such as social security or disability benefits, rental income, child care expenses, extraordinary medical expenses, etc.  There is case law, however, that says passage of time can constitute a change of circumstances for child support purposes.

As for a modification of alimony or spousal support, the court must again consider the circumstances considered at the time of divorce- the age and health of the parties, the length of the marriage, the income of the parties, the assets received by way of equitable distribution, the dependent spouse’s needs, the other spouse’s ability to pay, and the ability of the dependent spouse to contribute to their own needs. A court is only obligated to follow a settlement agreement to the extent that it is fair.

In an application brought by the payor or supporting spouse for a downward modification or termination of alimony, an issue central to the court’s evaluation is the supporting spouse’s ability to pay. In order to reach that issue, it is the burden of the supporting spouse to provide the court with sufficient credible evidence as in: an updated Case Information Statement (i.e. detailed financial statement form), pay stubs, tax returns, W-2’s, resume, job search, and anything else that can verify the change in their income and its effect on their ability to pay at the current rate.

Finally, the Appellate Division has given some guidance in the recently published matter of Gonzalez-Posse v. Ricciardulli, A-6446-06T3, decided November 9, 2009. In this matter, after 10 years of marriage and 3 children, wife filed for divorce. Both parties were natives of Argentina who were residing in the U.S. on a work visa obtained by the husband, who at the time was working for a large law firm in New York. At the time of the divorce, he was employed by Direct TV Latin America. The last year for his visa arose and Direct TV filed the paperwork to extend the visa. However, in the midst of the divorce’s finalization, husband was laid off by Direct TV and they rescinded the application for the extension on his visa. He was given the choice to return to Argentina on his own or be deported.

In the Property Settlement Agreement executed by the parties, support was calculated based upon husband’s then income of $150,000 and wife’s then income of approximately $21,000. Alimony was agreed upon for a 5 year limited period of time.

Upon his return to Argentina, husband obtained employment in a law firm. With the exchange rate, his income converted to approximately $26,000 U.S. dollars per year. He filed an application to recalculate his child support obligation and terminate his alimony obligation. His ex-wife opposed his application. The trial judge reduced the child support obligation. As for alimony, the judge reduced the weekly sum to be paid but converted the limited duration of 5 years to an obligation of 17 years. Both parties appealed from that Order.

On appeal, the Court found that the recalculation of husband’s child support was correct. As for the lower court’s ruling on husband’s alimony obligation, the Court reversed and remanded to the trial court finding that it was error to extend the term of the alimony obligation and stating that the lower court failed to consider the inconsistencies in wife’s income and her ability to contribute to her own financial support.

These applications are very fact sensitive and require attention to detail and a presentation of all the facts to the court so that the judge is not left with any question as to the validity of a paying spouse’s change in circumstances.

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