Since the onset of the pandemic, New Jersey family law practitioners and litigants alike have been wondering how the obvious financial repercussions the pandemic has wrought on individuals’ financial circumstances would be addressed by Family Law judges, when brought by litigants seeking to modify their support obligations.  Almost two years later, we have some guidance from the Appellate Division in the new unpublished (i.e. not precedential) decision, Gerstel v. Gerstel.

We have blogged many times before about what it takes to obtain a modification of child support and/or alimony, but as a quick refresher, the seminal case on this issue is Lepis v. Lepis, 83 N.J. 139 (1980).  Simplistically, the party who seeks a modification of support has the burden of proving that there has been a change of circumstances warranting an adjustment to child support.  Oftentimes, Lepis is invoked by payors who claim that something has happened that makes him or her unable to pay what (s)he agreed or was ordered to pay for child support and/or alimony, and that (s)he is entitled to a reduction of support.  In those cases, the party seeking relief has to show that the changed circumstances have substantially impaired his/her ability to support himself or herself, and must also show that the impairment is not temporary or prospective.

When the pandemic first hit, many of us asked ourselves how the courts would deal with the fact that  many individuals’ incomes were drastically impacted.  Could a litigant come before the Court after three months and prove that his or her income had been reduced due to the pandemic and ask for an adjustment?  A year into the pandemic, we asked ourselves: is a year with no end in sight long enough?  Would the Courts, taking judicial notice of the pandemic and its sweeping financial impact, engage in speculation about how long individuals might be affected – even though Lepis and its progeny bar courts from such speculation?  Would they grant interim relief, if not a modification?

The Gerstel case is one of the first, if not the first, case to come down from the Appellate Division and review how a trial court judge handled these issues.  In this particular case, the question came before the trial court in June 2020 – about four months into the pandemic (and what feels like three lifetimes ago).  At that point, the trial court judge found that, even if it were true that the pandemic had caused a reduction in the payor’s income over the past four months, this wasn’t enough.  The reason being, that a four month impact on earnings did not make the impairment to the payor’s income permanent. The trial court judge recognized the severity of the impact of the pandemic, but had no reason to believe that it would have a permanent impact.

The Appellate Division upheld the trial court’s ruling, finding that the judge exercised sound discretion.  But this ruling is certainly not the end all be all.  First, the Gerstel ruling does not seem to me to be a complete bar on Lepis relief based on the pandemic; rather, the distinguishing feature of a pandemic-related argument might be:  did the payor have a business or a career that has irrevocably changed or been eliminated because of the pandemic? There are surely business owners or W-2 wage earners out there whose careers and businesses have irrevocably changed because of the pandemic.

Moreover, that was then.  The trial court judge made his decision when we were only a few months into this long slog.  Perhaps someone still reeling from the effects of the pandemic two years later, with no end in sight, could distinguish him or herself from the payor in Gerstel – albeit, after demonstrating efforts to remediate his or her lost income.

Second, the Appellate Division did not foreclose the ability of trial court judges to use their equitable authority (legalese for:  the obligation and power to craft a fair result) to order interim relief.  Perhaps a litigant seeking the aid of the Court might not be successful in obtaining a long term modification, but a trial court judge could suspend or temporarily reduce support to give the payor a break during these times, with an IOU to the recipient of the support for the arrears.

Thus, while Gersten gives us some guidance, it isn’t the end of the story and we will have to wait and see how the Appellate Division reviews similar decisions made by trial judges at different times during the pandemic and with difference facts about the payor’s circumstances.



headshot_diamond_jessicaJessica C. Diamond is a Partner in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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