Reduction In Child Support After Incarceration For Arrears

In Solomon v. Solomon, the Defendant appealed from a 2013 Family Court post-judgment Order that granted the Plaintiff's Motion for reconsideration to compel the Defendant to pay substantial child support arrears from his 50% share of his 401(k) or IRA and the proceeds from the sale of a timeshare property. The parties in this case were married in 1996 and had three (3) children. They executed a property settlement agreement (PSA) in 2006 which was incorporated into their final dual judgment of divorce on the same day. The PSA required the Defendant 1) to pay the Plaintiff $300 a week in child support, and $325 per week in alimony for five (5) years; 2) divide the Defendant's 401(k) equally between the parties; and (3) divide the parties' ownership and usage of their timeshare property equally. In 2007, the court assigned to the Plaintiff an amount equal to 50% of the value of the Defendant's IRA and found that the Defendant violated the Plaintiff's rights by willfully failing to turn over to her half of the 401(k) in accordance with the provisions of their PSA. In 2009, the Defendant was sentenced to seven (7) years in prison. Subsequent to his entering into the PSA but before his incarceration, he was required to pay $35 per week toward support arrears. While he was incarcerated, the Defendant submitted an application to reduce his child support payments to $5 a week, to terminate his alimony, and to terminate his payment towards arrears. He argued that his incarceration amounted to a change in circumstances. In 2011, a Family Court judge denied the Defendant's request to decrease his child support payments, but suspended the enforcement of his support obligations pending his release. By consent, the Defendant's alimony obligation was terminated retroactive to 2008. In 2011, the Defendant was released to a work house. In 2013, the Family Court issued an Order pertaining to his child support obligation to which the Defendant moved for reconsideration. The judge who heard the Motion arguments, granted the Defendant's Motion for reconsideration and ordered that 1) the Defendant maintain his 50% interest in the 401(k); 2) the parties continue to share ownership of the timeshare, 3) the parties submit current case information statements, and 4) denied the Defendant's request to stay his existing child support obligation. In the interim, the Defendant's child support obligation was increased due to a cost of living increase and another judge ordered that the Defendant pay $35 a week towards his $90,358.64 arrears. In response, the Plaintiff filed a Motion for reconsideration which was granted and the Defendant was ordered to pay half of his 401(k) or IRA toward his child support arrears and to convey his interest in the parties' time share to the Plaintiff to put towards his arrears. This Order also reduced the Defendant's child support from $366 week to $66 and ordered that he pay an additional $100 per week ward his arrears. The Defendant appealed arguing for a strict enforcement of the terms of the PSA. According to the Appellate Division, "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Yet, in this case, the court was guided by its long-standing view that the " . . . obligation to provide child support 'is engrained in our common law, statutory, and rule-based jurisprudence.'" Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010). "Child support is the right of the child and responsibility of both parents, not a child won or lost by the custodial parent from the non-custodial parent." Pascale v. Pascale, 140 N.J. 583, 591 (1995). When considering all guiding principles that inform child support decisions and its standard of review, the court was satisfied that the lower court enforced the parties' PSA to the children's best interests and therefore affirmed the decision of the Family Court. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, alimony, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Child Support Modification Sought As Father's Income Decreased And Mother's Increased

In the recent post judgment Appellate Division case, Bigge v. Walker, the Plaintiff appealed from a 2013 Family Court Order that denied his Motion to modify his child support and life insurance obligations. The Appellate Division reversed the decision of the lower court. The parties involved in this case were married in 1987 and subsequently divorced in 1999. One child was born of the marriage in 1991. The parties' divorce judgment directed that the Plaintiff was to pay $105 a week in child support plus an additional $45 a week toward an arrears that had accumulated after they separated. The amount was determined by the parties without using the NJ Child Support Guidelines. In addition, the divorce judgment required that the Plaintiff maintain $100,000 in life insurance to secure his child support obligation. In 2013, the Plaintiff filed a Motion to modify his child support obligation because his work was not steady and he was often unemployed and as a result he fell into arrears. He further asserted that he was suffering from severe health problems and had recently undergone a triple bypass heart surgery which impeded his ability to work. In 2010, he had got a job working in a mail room an earned $26,955 a year as of 2012. In 2013, the Family Court denied the Plaintiff's Motion to modify his child support. The Plaintiff appealed. According to the Appellate Court, child support orders are subject to modification pursuant to N.J.S.A. 2A:34-23 and based upon a showing of changed circumstances. Lepis v. Lepis, 83 N.J. 139, 157 (1980). A Family Court motion judge may modify a child support obligation when the party seeking the alteration satisfies the burden of showing a change in circumstances. Dramatic changes in the income or earning capacity of either party, or in the circumstances of their children due to events such as attending college, may result in a finding of a changed circumstance. Colca v. Anson, 413 N.J. 405, 415-16 (App. Div. 2010). In this case, the Appellate Division found that the Family Court judge mistakenly exercised his discretion when he denied the Plaintiff's Motion to modify his child support as his income had been significantly reduced while the Defendant's income had increased. Therefore, the Appellate Division was satisfied that the Family judge did not make adequate findings with respect to the Plaintiff's child support obligation and life insurance requirement and the decision was reversed and remanded back to the Family Court for further proceedings. If you anticipate that you may want to petition the court for a post-judgment modification of your child support obligation it is imperative that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, divorce, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.