In these economic times we have seen an increase in our practice of post divorce applications seeking a downward modification of a former spouse’s support obligation(s).  These applications apply to both spousal support or alimony as well as child support.

NJ courts are all to familiar with these applications as there exists an entire body of case law that guides judges, attorneys and litigants alike in the burden of proof that must be established and the standard to meet in order to successfully seek the modification or defend against one.

Recently, the Appellate Court addressed this issue once again in the unpublished decision of O’Brien v. O’Brien, A-6045-08T1 decided November 10, 2010.  This matter stemmed from an appeal of the trial court’s Orders emancipating one of the parties’ 4 children and reducing defendant-husband’s child support obligation.

At the time of the divorce, the O’Brien’s had 4 children.  Plaintiff-wife was not employed outside the home.  Defendant owned a gas station, car repair business and towing business.  As a result of the divorce, plaintiff was designated as the parent of primary residence for the children.  The parties never determined defendant’s actual income but his accountant imputed income to him of $120,000/year. Defendant agreed to pay $580/week in child support, an amount he acknowledged was above the NJ Child Support Guidelines.

In the spring of 2009, defendant sought to reduce his child support obligation.  He based his request for a reduction on 3 factors: 1) plaintiff had obtained a job, 2) defendant’s income was allegedly reduced, and 3) the oldest child was eligible for emancipation.

Without a hearing, the trial judge emancipated the eldest child and lowered defendant’s child support obligation to $330/week.  However, the judge continued to use income of $120,000/year for defendant.  Defendant didn’t object to the application of this annual salary even though his application was based upon an alleged reduction in his income.

Plaintiff appealed arguing the trial judge improperly determined the eldest child was emancipated and that defendant failed to demonstrate a permanent and substantial change in circumstances warranting a reduction in his child support obligation.  The Appellate Court agreed and reversed and remanded the matter to the trial court for a plenary hearing.

Established case law in NJ tells us that the burden of establishing the circumstances that warrant the change rests on the party seeking the modification.  Zazzo v. Zazzo, 245 N.J. Super. 124, 131-32 (App. Div. 1990).  Plaintiff’s subsequent employment after the parties divorced is considered a changed circumstance.  Lepis v. Lepis, 83 N.J. 139, 151 (1980).

After the party seeking the modification has proven a change in circumstances exists, the court must decide whether or not to conduct a hearing.  Lepis tells us that “a party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary.”  Id. at 159.

Simply filing a motion declaring that you are suffering from a reduction in income and therefore entitled to a reduction in your support obligation may not be enough.  The reduction must be substantial and continuing and not an arbitrary decision for a career change.  Support obligations are taken seriously by judges and modifications are not always easy to prove.

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