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Words From Counsel Focus On Family Law Part Two

Dear Reader, Seeking a reduction in support is a difficult subject in and of itself, so let me preface this by stating that this column is not intended to benefit the payor spouse (the person paying support) over the payee spouse (the person receiving support). It merely highlights a troublesome aspect of family law in today’s economy. Decisions in these cases are largely inconsistent across the board, mostly because they are highly factual and trial judges have broad discretion. Plus, there is no bright line formula for when a reduction in support is warranted, even though the seminal case of Lepis v. Lepis 83 N.J. 139 (1980) and its progeny sets forth the criteria that courts must consider, including a reduction in the payor’s income, disability, etc. Competing with this, however, is New Jersey’s strong public policy in favor of upholding agreements between divorcing spouses and vigorous enforcement of support obligations. In a word, the chips are stacked against the payor seeking a modification despite the very mechanisms in place that are supposed to help.

So what do you do when you are laid off from work, experience an involuntary reduction in income, or suffer an illness that prevents you from working? For most, not being able to pay support is a huge stressor that impacts their lives on every front. Some have no idea where that next support payment is going to come from because their unemployment benefits have run out and their savings have been depleted. Others work in fields considered cyclical in nature, i.e. real estate, mortgage industry, etc., and what seems like a permanent change in circumstances to the payor is considered only temporary by the court. These cases weigh heavily on my mind, especially when there is an ex-spouse and children on the receiving end of the support obligation. 

If you are considering filing a motion to reduce your support obligations, you should retain an experienced family law attorney to represent you. Your application needs to be substantive, and concise, and your certification supported by proofs wherever possible. Many applications fail because they are ill-timed, lack substance or strategy, and are unsupported by the proofs, such as your documented efforts to find employment, including correspondence with prospective employers, interview dates, etc.

Meeting your prima facie burden of showing changed circumstances is just the first step in the process before moving on to the discovery phase and a possible plenary hearing. I believe that before engaging in this process, you should ask your attorney to set up a mediation to try and negotiate a temporary reduction in payments with arrears to accrue and a stay of enforcement. Remember, however, unless and until your obligation is modified by a court order or a consent order, you are still obligated to pay support at the current rate, or enforcement measures may be taken against you, such as a bench warrant issuing or suspension of your driver’s license.

Call me today so that we can discuss your options about an application to modify your support obligation and whether such a motions is right for you at this time.

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