By: Justin M. Smigelsky, Esq.
In any case where an alimony or child support obligation exists, either party may wish to modify the terms of the obligation. Pursuant to New Jersey caselaw, an alimony or child support obligation is always subject to review and modification on a showing of “changed circumstances.” As is typically the case, the obligor will claim that he or she is suffering from financial hardship and will seek a downward modification of the obligation – the obligee, oftentimes heavily dependent upon the support obligation being paid, will usually oppose the modification request of the obligor and may even seek an upward modification of support. Accordingly, in light of the competing interests involved, applications for modification of support are always fact sensitive and highly emotional.
As set forth in Lepis v. Lepis, the landmark case in New Jersey for modification of a support obligation, the party seeking modification of support has the burden of demonstrating a changed circumstance that would warrant relief from the obligation. If the party seeking modification is able to make a “prima facie” showing of changed circumstances, the Court could then order discovery of the adverse party’s financial circumstances, and must decide whether or not a hearing must be held to make a determination as to disputed material facts.
Pursuant to Lepis, the proper criteria is whether the changed circumstance is continuing and whether the Settlement Agreement, judgment, or decree has made any provision for a change in such a circumstance. There is no bright-line rule to measure when a changed circumstance has endured long enough to warrant modification of a support obligation. New Jersey Courts have consistently rejected applications for modification of support based upon circumstances which are only temporary or have not yet occurred. Therefore, although a party may be eager to file such an application to modify, the timing of the Notice of Motion must be strategic.
There are numerous examples of changed circumstances which, if substantial and permanent enough, may warrant modification of a spousal or child support obligation including, but not limited to:
- An increase or decrease in the income of the obligor
- Financial windfalls and good fortune
- A party’s illness, disability, or infirmity
- Cohabitation or remarriage of a supported spouse
- An increase in the cost of living
- Changes in custody arrangements or visitation schedules
- Emancipation of a child
- Maturation of a child
- The child’s receipt of income
If you have any questions in regards to alimony, child support, the Child Support Guidelines, or family law, you may wish to consult with an experienced family law attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. – 2016 – All Rights Reserved