It is well-settled law in New Jersey that child support and alimony awards are always modifiable. While there is an abundance of case law in the area of post-judgment modifications of support obligations, particularly in this economic climate, the most often cited case for modification is the seminal New Jersey case of Lepis v. Lepis, 83 N.J. 139 (1980). Indeed, the Lepis Court was the first in holding that when changed circumstances substantially impinge upon the supporting spouse’s ability to pay support at the level ordered, a modification of the support order might be necessary. The burden to prove this change in circumstances falls upon the supporting spouse when such a downward modification is sought.

A reduction in the supporting spouse’s income has long been recognized as a changed circumstance warranting a support modification, so long as it is not temporary in nature. In addition, the recent Appellate Division case of Angelastro v. Angelastro, recently solidified the notion that a support modification may be sought when the supported spouse’s economic circumstances change for the better.

In Angelastro, the parties’ property settlement agreement, executed in September of 2008, awarded the wife alimony as follows:

The [h]usband shall pay to the [w]ife[,] starting at the sale of the marital home[,] the sum of $350[] a week in [a]limony commencing for a period of six (6) years. Upon the completion of aforementioned six (6) years[,] the [h]usband’s [a]limony obligation shall reduce to that of $200[] and continue for a period of eight (8) years thereafter representing a total payment period of fourteen (14) years.

In addition, child support in the amount of $200 per week was provided for. The parties’ property settlement agreement specifically predicated the above support awards upon the wife’s imputed income of approximately $25,000.

Continue Reading Changed Circumstances Is A Two Way Street, the Appellate Division Says

We have recently blogged on the requirement that there be oral argument on substantive motions if it is requested.  Another requirement is that court’s should hold plenary hearings (i.e. trials) when there are conflicting certifications regarding a material fact in dispute.  That requirement was made clear again in the unreported (non-precedential) decision in Marquez v. Cabrera released on July 15, 2010. 

In this case, the Property Settlement Agreement provided that the wife got to keep two pieces of real estate owned by the parties, seemingly their largest assets, while the husband remained responsible for some debt associated with the properties.  This does not seem to pass the smell test on its face, a fact not lost on the Appellate Division in its decision.  The husband moved to set aside the agreement, alleging fraud – essentially that a signature page from a different agreement was appended to the one filed with the court on the day of the divorce hearing.  Of course, the wife denied this.  There was some credence on its face to the husband’s arguments given that there were two page sevens of the agreement. 

In any event, the trial court  denied the motion finding the wife more credible.  The problem there is that court are not supposed to make credibility determinations on mere certifications alone.  Rather, as noted above, if there are competing certifications, a plenary hearing must be held.  As such, the matter was reversed for a plenary hearing.  In addition, the Appellate Division held, "because the motion judge made credibility determinations and "may have a commitment to [her] findings," the plenary hearing must be conducted before a different judge." 

Continue Reading Failure to Hold a Plenary Hearing When There Were Conflicting Certifications Regarding Alleged Fraud Was Reversible Error

During the course of a litigation where children are involved, the parties will often come to an agreement as to custody and parenting time.  By settling on this understandably emotional issue, the parties avoid having to go to trial, where the trial judge would have decided for them who has custody and what the parenting time schedule will be.  Depending on when settlement occurs during the course of the litigation, the time and expense of obtaining a custody evaluation, which involves the children in the process as well, may also be avoided. 

However, oftentimes after settling the issue and coming to an agreement, one or both parents will change their minds about what they just entered into for whatever the reason may be.  He or she wants to change the agreement or simple rescind on its terms.  We are actually involved in a litigation where the parties agreed to a holiday parenting time schedule with a parenting coordinator, the Court subsequently entered the terms of the Agreement in an Order, and the husband is still trying to back away from the agreement, having just filed a motion with the Court and leaving our client with no choice but to incur legal fees to respond.

The question then becomes, can they change the schedule so easily if they want to?  The simple answer is no.  A parent seeking a modification of a custody and parenting time agreement must show changed circumstances from when the agreement was made that the agreement is now not in the best interests of the children.

Continue Reading Modifying a Custody and Parenting Time Agreement

We have previously posted many blog entries regarding modifying alimony and child support based upon job loss and/or reductions in income in light of the historic, current economic down turn.  To see some of my prior posts, click here, here, here, here, and here.

In our practice we have seen many clients coming in to address these issues and have heard anecdotally from judges that the increase in these kind of motions has hit the courts.

That said, there is still little consensus on how these cases are being handled.  There is no consensus amount the courts regarding how long you have to wait to come to Court.  There is no consensus amount the court’s regarding how much of your assets you have to go through, or whether you have to incur debt before you can file.

There seems to be a focus on the lifestyle of the support payor, i.e. has he or she reduced their lifestyle.  While that is an appropriate consideration, it may be too simplistic.  Looking at the house someone lives on or the car that they drive likely does not tell the whole story.  Can the person reasonably sell their home in this market without facing a deficit?  How long would it take to sell the house anyway?  Maybe the car is leased or if financed, there is negative equity and they cant rid of it to reduce their expenses. 

The bigger question is whether despite a clear loss or reduction of income, whether the payor has to strip their lifestyle to bare bones, or whether the undisputed reduction of income should be enough. 

Court’s also have to beware the opportunist who is using the bad economy in general to try to reduce or limit their support obligation when there is no real credible evidence that they have or will be affected. Scrutiny in this regard is particularly difficult when the payor is a business owner and has the ability to control their income in various ways.  The skepticism and scrutiny in these cases is heightened.  I have two cases now represented service providers – one of whom has lost many long term clients because they have simply gone out of business – and the other, who has received less than half of the orders and deposits then have historically been received by this time of year (and it is a seasonal business).