Divorce FAQ's
1. I can’t afford to live any more because of my outrageous child support and alimony payments. Can I file a motion to reduce/terminate my support payments based on the recession?
What happens if the New Jersey family court has ordered you to make child support and/or alimony payments and you no can longer possibly make these payments? Can you simply ignore your child support and alimony payments? Unfortunately, many people do, but they wind up ruining their credit and eventually getting locked up. Instead, you should go back to the New Jersey family court and file a motion to reduce child support and/or alimony. Whether you are paying child support/alimony, if you stop making these payments, then the could hold you in contempt of court. In plain English if you are held in contempt of court, then an arrest warrant will issue for your arrest. Thereafter, you will get locked up sooner or later.
If you are the payor spouse and if you are making less money than you were at the time when you were divorced, then you may have some strong legal grounds to file a motion to reduce your child support/alimony. At the time of a divorce, child support and alimony are based on the parties’ incomes. If there a major change of circumstances occurs after your divorce case, such as the loss of employment due to no fault of your own (i.e., layoffs, plant and store closings, corporate bankruptcies), then you could file a motion with the family court.
In this mini-depression many people are suffering a major change in their financial circumstances. Therefore, their case is ripe for a fresh review their child support and/or alimony payments. You may have lost your job. Maybe you have experienced a major decline in your income. Maybe you have had a reduction in your base salary, or your bonuses have been slashed. Perhaps you have left the job market to go back to school to be retrained for a new career. If you are a payor spouse and if you are struggling to pay your child support and/or alimony, then it could be the right time to go back into court to reduce or even eliminate your child support or alimony.
A post-judgment review and reduction of child support/alimony is based on a major change of circumstances. The term change of circumstances is a legal term of art. There are literally thousands of legal cases that define what is a œchange of circumstances. There is no clear cut list of the circumstances that would justify an automatic reduction child support and/or alimony. Each case is decided on an individual basis. However, a review of New Jersey case law has consistently recognized increases or decreases in income, illness, maturation of children, loss of employment, or retirement as bright line event that justifies a reduction of child support or alimony.
The current economic climate has convinced many courts to now carefully scrutinize present-day post-judgment application to reduce child support/alimony. In today’s miserable financial climate, the roller-coaster stock market; skyrocketing unemployment; mortgage, bank, and motor industry crises; and government bailouts many people simply need to have their support payments reduced. The family courts examine these applications on a case-by-case basis, and they review the specific circumstances and needs of both the payor and payee spouse.
2. How can a person obtain post-judgment alimony/child support reduction?
There are two ways a former spouse can obtain a post-judgment support modification. First, the payor spouse can file a motion to reduce child support/alimony in the family court. If the parties are on good terms then they can voluntarily reduce alimony and sign a consent order. When the payor spouse experiences a major change of circumstance(s), then he can file a motion to reduce support. Once the motion is filed, then the court will review the child support and alimony payments and determine whether it should be reduced. The payor spouse who has filed the motion has the burden of proof, and he must demonstrate a major change of circumstances. The motion must have a detailed certification that explains how your financial situation has worsened since the date of the divorce. A certification is simply a written explanation of your family situation, what type of job you now have, an overview of your economic situation, and a summary as to why you believe your support should be reduced.
When the court reviews the motion, the judge must first determine that the payor spouse has demonstrated a change of circumstances to justify a reduction of support. In legal terms the payor spouse must establish a prima facie or a preliminary case if a change of circumstances. If this legal burden is satisfied then the judge will consider the other spouse’s ability to pay, needs, and income. The court may also order the exchange of financial information. If the court finds that a question of fact exists as to whether the support provision should be reduced, then the court may order a plenary hearing. Basically, a plenary hearing is a mini-trial. However, if the court believes that the case is “cut and dry,” then the court will rule on the motion without a hearing.
3. Do I have to go to court to have my child support and/or alimony payments reduced?
Sometimes the ex-spouses agree to a post-judgment modification by agreement. Thereafter, the parties can execute a consent order and then file it with the court. However, this is the exception rather than the rule. In the vast majority of the cases the ex-spouses bitterly battle over every penny of child support or alimony. However, in those rare cases wherein the parties do agree, the parties can either by themselves or through their lawyers exchange financial documents, i.e., case information statements, tax returns, and current pay stubs, to gather information. Thereafter, the parties can then negotiate between themselves as to whether support should be reduced.
Your lawyer can then draft a consent order that reduces the alimony or child support. A consent order is simply a document outlines your agreement on the new amount of support. The consent order is signed by both former spouses, their legal counsel if any, and by the judge. It is always advisable to try to resolve your post-judgment issues via a consent order if at all possible. Post-judgment motions and especially alimony reduction motions cost “big bucks.” Moreover, if the judge orders a plenary hearing then your post-judgment application could very well cost more than your divorce case.
In summary, the legal process of trying to reduce your child support or alimony can be a very long and winding road. You can’t simply write a letter to the judge and cry that I am broke and I can’t afford to pay my ex-wife anymore. You have to fill out a massive amount of forms, and provide concrete documentation that you have suffered a change of circumstances.
4. Which party has the burden of proof in an alimony/child support reduction motion?
In any child support/alimony reduction case the payor spouse has the burden of proof to establish a major change of circumstances. If you want to file a child support/alimony reduction motion then it is imperative that you prepare a comprehensive motion. The judge could very well award counsel fees to your ex-wife if you don’t prevail. It is important to emphasize that you simply will not obtain a child support/alimony reduction merely because you have lost your job or if your income has been reduced. The court must analyze the payor spouse’s change of circumstances, how much and for how long the support payments should be modified. Finally, the court also must take into consideration as to how a support reduction will the effect the payee spouse and the children. In summary, there is a tremendous amount of subjectiveness in the family court system. You could file your child support/alimony reduction motion before five different judges and obtain five different outcomes. There are no guarantees when you file your child support/alimony reduction motion. However, your odds increase substantially if your motion is well prepared, and if it has a detailed appendix that verifies your reduced income, your deteriorating health, and proves that you have made a good faith effort to find a better job.
5. What type of paperwork must I submit to file an alimony/child support reduction motion?
In any alimony/child support reduction motion the most important part of the motion is the certification. The payor spouse must file a certification with the family court. A certification is basically a legal document that explains your side of the story. The certification must explain to the court why you believe your support payments must be reduced. The appendix to the certification is also critical. You should attach copies of letters, resumes, or e-mails that verify that you have been pounding the pavement for work. You should attach any postings from employment web sites. You can explain to the court that you have used these web sites to try to find a job. Moreover, you might want to keep a detailed diary of all of your efforts to try to find work. You should attach any copies of any job rejection letters. The diary should be as detailed as possible. The diary should have the dates and the outcomes of interviews, any employment offers made, and explain the reasons why any offer was not accepted. Moreover, the payor spouse should certify what efforts he has made to search for a job in the local newspapers, trade or industry journals. Moreover, if the payor spouse has tried to use a headhunter, then any available contracts or other documentation should be attached to the motion.
If a payor spouse does accept a job with a lower salary after a thorough job search, then this will certainly increase the odds that a motion to reduce support will win. If you have the documents that prove that you have pounded the pavement, and the job that you have accepted was the best that you could find, then most judges will be sympathetic to your plight. However, you will have to provide detailed documentation to verify same. Some judges simply will not take your word for it, and they will insist that you provide hard and concrete documentation that the lower paying job that you just accepted is the best that you could find.
6. What are the legal factors that the court analyze when a payor spouse has lost income because of a career change and/or received lower income?
New Jersey case law has established several factors that the trial court must consider in a case dealing with a career change and lower income. These factors include: the reasons for the career change (both the reasons for leaving the prior job and the reasons for choosing the new job); disparity between prior and present earnings; efforts to find work at comparable pay; the extent to which the new career draws or builds upon education, skills and experience; the availability of work; the extent to which the new career offers opportunities for enhanced earnings in the future; age and health; and the former spouse’s need for support.
As one can surmise from reviewing the above legal factors, a motion to reduce support based on a job loss should not be filed hastily. Even though you may sincerely believe in your heart that you deserve a reduction, the court may not agree with you. It is important to emphasize that your ex-wife always has the “home field advantage” in the family courts. Your motion will have to “hit it out of the park” to be successful. Even though the family courts are much more “open eared” to your reduction motion, your ex-wife still has the edge. Therefore, you should not just submit a bunch of “slop” when you file your motion. Your motion must be prepared in a top notch manner. If your income has plummeted then attach your last three tax returns that proves that your income is going down. If your health is going “down the tubes,” then attach your medical reports. If you have filed for bankruptcy then attach your bankruptcy petition and your discharge papers to your motion. If you have been evicted then you should attach your eviction papers. In summary, you must paint your “tale of woe” in an artful and thought out manner. If you just inform the court that you have lost your job and are broke then you will not win your motion.