August 28, 2009
It should come as no surprise that noncustodial parents are finding it harder to meet their child support obligations. Loss of employment, faltering businesses, the need to accept lower paying jobs or part-time work — all are contributing factors. But the custodial parent still needs to feed and clothe the children, take them to the doctor and pay their expenses. How are couples resolving this dilemma?
Court applications seeking a reduction in support are increasing. Nearly 40% of the matrimonial attorneys surveyed reported an increase in these applications. Some applicants seek a reduction because their current net income isn’t even enough to cover their support obligations. The immediate past president of the National Council of Juvenile and Fmaily Court Judges has been quoted as saying that the courts are generally sympathetic to these applicants, but that judges still have to focus on the children’s needs – and this could mean a denial of a request to reduce child support.
Many couples, struggling with their finances, are choosing not to go to court at all. Rather, they are determined to try to work out a reasonable compromise that they can both live with. In an Associated Press article published by The Washington Post on August 27, 2009, several custodial and non-custodial parents report on the benefits of cooperation. Some have chosen to mediate their problem with the assistance of a trained family mediator rather than incur the expense of court and risk an unsatisfactory outcome. Parties who have agreed to reductions are, in some cases, finding that their ex-spouse is more co-operative in other ways, including taking over more child-related responsibilities and spending more time with the children.
Maybe poor economic times will have some benefit after all.
For more information on mediation, check the Mediation section of this website and other related internet sites, such as www.Mediate.com.continue reading
Since July 10, 1998, when the NJ Supreme Court adopted Court Rule 5:6B, a cost-of-living adjustment (COLA) is applied every two years to existing child support orders. If the Child Support is paid through the Probation Department, they initiate the process. Many Marital Settlement Agreements entered after 1998 also provide for the a COLA to child support, even if the money is paid directly and not through Probation.
But — and this was always confusing — the statute known as N.J.S.A. 2A:17-56.9a provided that child support orders “shall be subject to review” every 3 years. Based on this statute, the court in Doring v. Doring, 285 N.J. Super. 369, held in 1995 that the passage of 3 years alone was a sufficient basis to trigger a review of a child support order. That holding appeared to provide an exception to the NJ Supreme Court case of Lepis v. Lepis, 83 N.J. 139 (1980) which requires a showing of specific and substantial changed circumstances before a court will consider modifying a child support order.
On April 24, 2009, in a decision approved for Publication on July 31, 2009, the court, in Martin v. Martin, held that “child support orders are no longer subject to automatic court reviews every three years.” Rather, the two year COLA provides the appropriate adjustment. Of course, either party may seek a modification if they can show that it is warranted based on a significant change in their financial circumstances or the other party’s financial circumstances.
The Martin court also recapped the only two bases for objecting to the R. 5:6B cost-of-living adjustment: 1) the obligor’s income has not increased at a rate equal to that of inflation; or 2) the child support order (or Judgment of Divorce) provides a different schedule for applying a COLA.
TIP: If you want a more or less frequent review of child support than the 2 year period provided in the court Rule, it must be stated in your Order or the Agreement that you incorporate into your Judgment of Divorce.
REMINDER: You don’t need to go to court to have child support modified. The cost-of-living indices are readily available and, if the parties agree on when and how to apply them, they can enter into a Consent Order. Consider reviewing child support through mediation.continue reading
August 13, 2009
In a published opinion, The Honorable Robert J. Mega, sitting in the Chancery Division, Family Part in Union County, held that New Jersey courts retain “continuing exclusive jurisdiction” to modify a spousal support order that was established in New Jersey. The unusual issue decided in Pek v. Prots, FM-20-00286-04, arose because the parties parties had both moved out of New Jersey after the divorce. Their Judgment of Divorce provided that Ohio should exercise all future jurisdiction of issues arising after the divorce.
Despite their agreement — and the fact that they no longer reside in New Jersey — the court found that Federal Law (specifically the Uniform Interstate Family Support Act (UIFSA), overrides their contractual selection of jurisdiction as to the issue of modification of alimony, but not child support. UIFSA is codified in New Jersey at N.J.S.A. 2A:4-30.65 to 123.
The issue arose after plaintiff filed a motion to modify child support and alimony in Ohio where his former wife and the children reside. The Ohio court agreed to exercise jurisdiction over the child support issue, but not over spousal support. The New Jersey court agreed, holding that, although forum selection clauses are generally enforceable in this State, enforcing the parties’ choice of jurisdiction over alimony could avoid potential confusion among jurisdictions which might result in a litigant having no forum whatsoever in which to litigate his claim.
Lesson to be learned: Since a significant amount of litigation involves post-judgment issues, it is critical that parties be well-informed of the law before entering into a Settlement Agreement which is to be incorporated into their Judgment of Divorce.
More important lesson to be learned. If the parties had sought mediation to resolve the modification requests made by plaintiff in this case, the time and expense of duplicate litigation in NJ and Ohio could have been avoided.