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Modification of Alimony and Child Support: What is a "Change in Circumstance?"

palimony.jpgWhen couples divorce, the courts first look to see if the parties have an agreement that lists the terms of their post-marital life. Expenses, childcare, and division of assets can all be addressed in these types of agreements. The courts will give great weight to these agreements, so long as they are enforceable and valid, because they are an expression of the couple's wishes. However, these agreements are made at a certain period of time, usually at the time of the marriage, under circumstances that exist at that time. Circumstances can change though, and the best post-marital agreements address this aspect of life.

A New Jersey Appeals Court analyzed such an agreement in the case of T.M. v. R.M. The two parties married in 1992, divorced in 2010, and entered into a matrimonial settlement agreement (MSA). At the time of the MSA, the husband was making a salary of $100,000.00 per year. He lost his job shortly after the divorce and was unemployed for about eighteen months before he found his next job earning $38,400.00 a year. The wife was in nursing school at the time of the divorce.

The MSA provided that the former husband would pay $3,000 per month in alimony and $1,000 per month for child support. These figures were calculated based on his $100,000.00 salary and the then true statement that the wife was not employed. The MSA also required him to pay 17% of anything he made over the $100,000.00, in addition to splitting the children's unreimbursed medical expenses. The MSA also contained a provision that allowed a review of spousal support once the former wife graduated with her nursing degree. If she did not finish her education, an income would be calculated for her. The MSA also allowed a review period when she finished school and obtained a job.

The former husband sought review of the MSA based on two facts: 1) his new job and salary and 2) the fact that one of the children had completed college, was fully employed and was therefore emancipated. The court found that he successfully demonstrated that there was a "changed circumstance" from the time of the MSA to present. Emancipation in the eyes of the law exists when "the child has moved 'beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status of his or her own." The court looks at financial independence, the child's needs, and a family's reasonable expectations, among other things, to make its determination. Id. Attendance is also a major factor in this inquiry.

What a court finds is a "changed circumstance" is a case-by-case determination. Generally, no one fact is dispositive. T.M. v. R.M. shows that a child obtaining financial independence and a change in employment may be enough to confront an MSA.

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