Child Support – When is it Time to Modify?
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.
You need to be loged to make a comment