Divorce, Support Payments and a Change of Income

October 13, 2012 (Press-News.org) The use of child support or spousal support may be necessary to provide for children or a spouse after a marriage has ended. The courts determine the equitable amount needed for child support and issue an order as part of the divorce decree.

What happens when the non-custodial spouse losses their job or suffers a significant loss of income? In New Jersey, it is important to determine if the income is permanent.

Because your obligation to pay child support is created by a court order, your job loss does not automatically eliminate your obligation for making your child support payment.

While it might seem obvious that if you have lost your income you cannot afford support payments, the importance of child support is such that the courts require a much greater showing than a mere assertion that you have suffered a loss of income.

A Substantial Change

To change the amount of your support payments, you first must obtain a modification of your support obligation, which is another court order. New Jersey courts require that you demonstrate that there has been a "substantial change" in circumstance.

If you lost a job, you may believe that this is clearly a substantial change, and a court will readily grant a modification to your support obligation.

However, in New Jersey, a job loss has typically been considered a temporary job loss, and therefore, not viewed as a "substantial change." The reasoning is that you will eventually find new employment and return to your prior earning capability and, therefore, you ability to make your support payments.

Jobless Recovery

Given the difficulty of the recent economic climate for obtaining replacement employment that is substantially similar to the job you may have lost, courts might have to consider this as the new reality.

If you have tried to find new employment and have failed for a significant period, your divorce attorney may be able to argue to the court that you have suffered a permanent job loss that has become a "substantial change" warranting a modification.

If, over time, it becomes clear that you may not be able to return to a comparable position and income, you may be able to successfully petition for a modification to a support order.

Nonetheless, if your job loss or change does not qualify as a "substantial change" you are still obligated under the existing court order to make the support payments. Failure to do so may result in New Jersey taking enforcement action.

The state has considerable tools that their disposal to enforce payment orders. It can intercept any federal or state income and property tax refunds and lottery prize winnings, size bank accounts, withhold unemployment payments or workers compensation benefits, charge interest on the child support arrears, deny student grant payments, suspend your drivers or professional licenses and refuse to issue a passport and any arrearages will be reported to the credit bureaus and will affect your credit score.

If you are receiving support payments and the non-custodial parent has stopped making payments, you should contact the state agency and they can use any of the above listed powers to enforce the order.

This process can be confusing and disorienting, and whether requesting enforcement or defending against an improper enforcement action, you may need to speak with an experienced family law attorney for advice and assistance in how to proceed.

Article provided by Goldstein & Bachman
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