In New Jersey, alimony and child support orders can be revised after a judgment of divorce. A former spouse who wants a change in his or her child support obligation has the burden of showing a change of circumstances that would warrant a modification. Before 2014, the burden was much heavier on the person paying, but now, a court must make a deeper analysis on whether a change in circumstances has occurred. This benefits the paying spouse, as we see in the recent case of Klemash v. Klemash.
In that case, the final judgment of divorce ("JOD") was entered in December 2012. The paying spouse had to pay $81 per week for child support and $150 per week for 4 years. The court ordered that the father's child support obligation started in July 2012 and his alimony obligation started in February 2013.
At the time of the divorce trial the father worked as a loan officer and earned $24,000 per year in that position. But he was involuntarily laid off from his job in June 2013 due to a "lack of work." He consistently but unsuccessfully sought reemployment as a loan officer. After 14 months of unemployment and an unsuccessful job search, he filed an application with the court for a reduction in his alimony and child support obligations.
The lower court denied his application, for the reason that the time between the JOD and the defendant's unemployment was too short. But he successfully appealed this decision and the lower court's decision was reversed, because under the 2014 Alimony Reform Act, the court was not allowed to solely look at the length of unemployment when deciding whether a modification was allowed.
As the new law mandates, a court must look at multiple factors: 1)the reasons for any loss of income; 2) the payor's documented efforts to obtain replacement employment or to pursue an alternative occupation; 3) whether the payor is making a good faith effort to find remunerative employment at any level and in any field; 4) the income of the payor and the financial circumstances of the person getting support; and 5) the reasonable efforts of the person getting support to get employment, in view of those circumstances and existing opportunities. This list is not exhaustive and the courts can consider other things as well.
In Klemash, the ex-husband provided evidence that his ex-spouse was cohabitating with a lover and this should have created the presumption of changed circumstances requiring an end to alimony payments. But the lower court only briefly questioned the ex-wife about the cohabitation before deciding that there was no cohabitation. The appeals court was no satisfied that that the lower court did not make any finding of facts or law before denying the application based on cohabitation and demanded that the judge go deeper into the issue.
What the Klemash case shows is that those who pay support should not hesitate to apply for modification of child and alimony support if they become involuntarily unemployed due to financial or health reasons, as long as they have made reasonable and good faith efforts to secure alternative employment, or their health prevents it. The courts today have much more leeway and power to modify alimony and child support payments. If you're paying alimony and have proof that your ex-spouse is cohabitating with another, put together your evidence, because it may justify the reduction or elimination of alimony payments. Omar Bareentto is a 2016 Rutgers School of Law graduate and a former contributor to the Rutgers Business Law Review. He collaborated with me on this blog.