Modification of Child Support

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Recently, the Appellate Court addressed this issue once again in the unpublished decision of O’Brien v. O’Brien, A-6045-08T1 decided November 10, 2010.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.

Continue Reading When Is a Modification of Child Support Proper?

On May 21, 2010, the Appellate Division issued a reported (precedential) opinion in Colca v. Anson involving different aspects of child support and college support.  This case reinforces several principles regarding child support and payment of college expenses that we already knew (which makes it somewhat surprising that it was reported) but nevertheless is a good reminder of certain basic principles. 

The first of these principles is that child support belongs to the child and thus cannot be waived by a parent or for that matter, by a court.  This comes up in two contexts in this case.  First, in a 2005 Order, for whatever reason, the trial court denied the father’s request for child support for the parties’ daughter who was in college.  In another motion in 2008, the father sought child support again.  Thinking that the matter had previously been decided by the court and that there were no changes of circumstances, the mother did not even file a Case Information Statement. 

The trial court disagreed with the mother’s position that the prior Order was forever binding and required a showing of changed circumstances, pointing out that the duty to support a child continues until emancipation.

In addition, the Appellate Division affirmed the trial court’s decision that the child’s inheritance could not be considered with regard to support.  While perhaps correct as to child support, there are not enough facts given in this opinion about how much was really in dispute. That said, the Child Support Guidelines suggest an adjustment to child support may be required if a child has an extraordinarily high income.  Also, in the famous NJ case on college expenses, Newburgh v. Arrigo, which we have blogged on many times before, a child’s assets are a factor to be considered.  Since the college was at issue in this case, one wonders why the inheritance was not considered here.

Continue Reading A Decision To Not Require Child Support Is Not Binding on Future Court To Hear Matter – Child Support Cannot Be Waived

Under New Jersey law, a party of a divorce can seek modification of an order for child support or alimony if there is a “change of circumstance” that affects the income or earning ability of one of the parties.  Lepis v. Lepis, 83 N.J. 139 (1980).  This proposition is one of the most common reasons for post-judgment motions in New Jersey Family law courts, especially in the current economy.  But in a recent unpublished New Jersey Appellate Division decision, Good v. Nedza, the Court affirmed a post-trial order, which did not permit a recalculation of child support or arrears because one of the parties failed to act on information they had obtained years earlier and had at the time when the parties entered a Consent Order for child support.

In Good, the parties were divorced in 2002.  At the time, Mr. Good was the primary provider and the wife, Ms. Nedza, was a homemaker.  The parties had three children.  They agreed that Mr. Good would pay child support and alimony, and they would share joint legal custody of the children with Ms. Nedza having primary residential custody.  Over the years circumstances changed.  By September 2005, all of the children were residing with Mr. Good and his child support obligation was terminated.  A Consent Order entered in January 2006 addressed Ms. Nedza’s child support obligation to Mr. Good.

Continue Reading Modification of Child Support – When to File

In New Jersey, in a family court matter, if a party’s position is unreasonable or taken in bad faith, the other party can seek reimbursement of attorney’s fees. This was the case in the recent unpublished decision of Ramirez v. Ramirez, New Jersey App. Div., Docket No. A-2035-08T32035-08T3, November 24, 2009

 In Ramirez, the parties were divorced by a Dual Final Judgment of Divorce entered on January 29, 2007, which incorporated a settlement agreement. Following the divorce, in three separate motions, plaintiff persisted in seeking a re-calculation of defendant’s income based upon allegations and documentation relating to circumstances that existed for several years prior to their 2007 divorce. In his December 21, 2007, decision the judge put plaintiff on notice that she had failed to establish a change in circumstances. Nonetheless, plaintiff filed a cross-motion in August 2008 and a motion for reconsideration on October 6, 2008, both of which continued to seek the same relief based upon the same allegations. As a result, defendant was compelled to incur “unnecessary costs” for which he is entitled to be reimbursed. Under these circumstances, the judge awarded and the Appellate Division affirmed the counsel fees awarded to defendant.

Continue Reading Should You Make a Motion for Reconsideration?

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.

Continue Reading Applications for Modification of Support Awards

I have heard on more than one occasion from a client that their spouse or ex-spouse isn’t earning nearly as much income as he/she may be capable of earning.  This statement is often made in the face of an alimony or child support calculation.  What happens if this is in fact true?

During the divorce process one of the more common ways to determine how much income a spouse can earn is to have them evaluated by an employability expert.  Now if you look up “employability expert” as a qualified profession or a course of study available in a college course book, I doubt that you would find it in there.  Like many other things, employability experts arose out of a need in the legal profession to have an individual with the proper experience, knowledge and background meet with an individual and assess their skill set to determine what kind of employment they may be eligible to obtain. Viola- a new niche profession is born!

So what about after a divorce is finalized and an ex-spouse is either unemployed (because of the economy, the job market or they simply refuse to work) or is underemployed (earning less than they had previously earned either by choice or no fault of their own) and a support obligation exists?  What does the court then rely upon when addressing the recalculation of a support award?

Continue Reading Calculating Child Support Obligations

It is not uncommon for divorcing parties or parties who may have never married but share a child in common to face the issue of the costs of childcare.  In a time and economic climate where more often than not, both parents must work to support a household, payment of child care costs is an issue that must be addressed.

When calculating the Child Support Guidelines, which is the method NJ courts use when determining how much child support one party will pay to another for a child or children, part of the consideration allowed is a credit for child care costs paid.  It is not necessary that the cost of child care be included in the Guidelines calculation, as sometimes there are situations where parties will negotiate payment of this expense outside of the Guidelines calculation.

Continue Reading Child Care Expenses as Child Support