Are You Divorced? Have Circumstances Changed Since Then? If So, Now May Be a Good Time to Amend the Terms of Your Settlement Agreement or Judgment of Divorce - As Seen in the Morris County Women’s Journal (Feb 2006)
Jan L. Bernstein, Esq.
After divorce, many people encounter changes in their lives or in those of their children which necessitate a post-judgment application to the Court. Maybe you have lost your job or become disabled and, as a result, are struggling to meet your obligation to pay alimony or child support. Maybe gaining an education or job training to assist your transition back into the work force is taking longer than anticipated and you need the continued support of your ex-spouse. Maybe the needs of your growing children are straining your limited budget. Whether your circumstances mirror those listed above or are different, it may be time for you to modify the terms of your settlement agreement or Judgment of Divorce.
When is child support modifiable?
Child support is always modifiable. When modification of a child support award is sought, the court must consider how to serve the best interests of the child. This analysis requires the court to examine the child's needs, the ability of both parents to contribute to the child's needs and various other factors. A child's needs may have changed due to his/her age, academic status, extracurricular pursuits or even due to a medical condition. A parent's ability to contribute to the needs of a child may have changed due either to the loss of a job or because of professional success, illness/disability, or even incarceration. Importantly, a child is entitled to share in his/her parent's post-judgment good fortune. As such, child support may be modified upwards if you or your ex-spouse have benefited from an increase in income following your divorce. On the other hand, because all children are entitled to receive support from their parents, your prior child support obligation may be decreased if an additional child is born to you after your divorce.
When is spousal support modifiable?
Spousal support is modifiable (up or down) upon a showing of a substantial change in circumstances. As alimony is initially awarded to provide one spouse with support sufficient to maintain them at the standard of living of the marriage, the Court must first determine that standard before it can address whether there has been a substantial change of circumstances. To determine the marital standard of living, the Court may require you to produce a copy of your prior Case Information Statement, copies of tax returns filed during the marriage, or copies of credit card and bank statements showing your income and spending during the marriage. A substantial change in circumstances may have occurred relative to the spouse paying support or to the spouse receiving it. If you are paying support, you may have experienced a change in circumstances which prevents you from maintaining your obligation. For example, you may have retired or become disabled. If you are receiving support, you may have experienced a change in circumstances which requires an increase in the total amount of support or the time over which support will be paid. For example, your cost of living may have increased or you may have been unable to find gainful employment. A substantial change of circumstances may have occurred because the spouse receiving support has re-married or is co-habiting with another adult. Even if you and your former spouse agreed in writing not to seek the court's intervention to address post-judgment support issues, the court may still have the power to re-evaluate and amend the terms of support.
What is the process to modify a support order?
Upon a motion made either by the party paying support or by the party receiving it, a Family Court judge may review the terms of a support agreement/order and determine whether they should be changed. This process is difficult and one best managed by an experienced attorney. When presented with a post-judgment application requesting the modification of a support obligation, the Court will take one, perhaps two steps. First, the Court must determine that the party seeking to modify the terms of support has shown "changed circumstances" sufficient to modify the specific support provisions involved. This prima facie (preliminary) showing of changed circumstances must be shown before the court may consider the other spouse's ability to pay or order the exchange of financial information. Then, if the court finds that a question of fact exists as to whether the specific support provisions involved should be changed, it may take the second step and conduct a plenary hearing (mini-trial) before rendering a final decision.
The State of New Jersey has not developed a list of circumstances which, when present, would automatically direct the modification of a prior support agreement/order. However, it is important to keep in mind that a court will likely not modify the terms of a support agreement/order where a change in circumstances is temporary or where the change is anticipated but has not yet occurred. Moreover, a court may not modify the terms of a support agreement/order where the change in circumstances was voluntary and made in bad-faith or stems from a voluntary criminal act. Since there are as many different reasons to modify a support order as there are families in the State of New Jersey, a judge must examine the specific facts of each case before determining whether "changed circumstances" exist. If you have a question as to whether the specific facts of your case may warrant a post-judgment modification of a prior support agreement/order, please contact a Phillips Nizer family law attorney to schedule a consultation.