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What If I Can No Longer Afford to Pay My Support Obligations? (Part II)

Nov 17, 2014 | Written by: Diana N. Fredericks, Esq. |

Modifications of Spousal and Child Support Under the New Statute.

Although the current unemployment rate in New Jersey is almost two percent less than when Part I of this article was written in 2013, clients and their families remain affected; they continue to report the loss of overtime, bonuses and/or pay cuts.  When an Order already exists for alimony, what is the payor supposed to do? How does one seek relief? Because the failure to pay support can have severe and significant consequences, it should be addressed as soon as possible. 

The new statute now differentiates between individuals who are self-employed or non-self-employed. 

For non-self-employed individuals, such as a traditional W-2 wage earner, no application shall be filed until a party has been unemployed, or has not been able to return to or attain employment at prior income levels, or both, for a period of 90 days.  When a non-self-employed party seeks modification of alimony, the court shall consider the following factors (note factors 4 and 9):

  1. The reasons for any loss of income;
  2. Under circumstances where there has been a loss of employment, the obligor’s documented efforts to obtain replacement employment or to pursue an alternative occupation;
  3. Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;
  4. The income of the obligee; the obligee’s circumstances; and the obligee’s reasonable efforts to obtain employment in view of those circumstances and existing opportunities;
  5. The impact of the parties’ health on their ability to obtain employment;
  6. Any severance compensation or award made in connection with any loss of employment;
  7. Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;
  8. The reasons for any change in either party’s financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party’s financial circumstances at the time of the ACS for A1649 10 application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;
  9. Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and
  10. Any other factor the court deems relevant to fairly and equitably decide the application.

Interestingly, the court shall have discretion to make any relief granted retroactive to the date of the loss of employment or reduction of income.

When a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, then that party’s application for relief must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.

If you believe you have experienced changed circumstances since the entry of a prior Court Order or your divorce agreement, you may be entitled to a modification.  Conversely, you may need to oppose a modification application if the obligor has not met their legal burden.  Every New Jersey family is different.  Even if you believe the outcome of your application should be clear, a court may see your family’s situation differently. Because so much is at stake financially, you may need the assistance of an experienced attorney.

Gebhardt & Kiefer is a full-service law firm located in Annandale (Hunterdon County), New Jersey. We are currently celebrating our 130th anniversary.