Determining Support in Underemployment or Unemployment Cases
(provided by Theodore Sliwinski, Esq.)
1. I am paying $300 per week in child support for my two children. However, I just lost my job at GM. Can I now go back to court to try to get my child support reduced?
The family courts are swamped with motions to reduce child support or alimony based on the grounds that a spouse has lost a high paying job. Moreover, in many divorce cases a key issue is whether a spouse is underemployed. Many non-custodial parents believe that they should not work really hard because all of their money is going to be garnished anyway. Many non-custodial parent frequently believes that there is no point in working hard because they will never see his paycheck anyway.
In the above scenario, you certainly can file a Lepis motion to seek a reduction of your child support. However, you will have to submit a very well prepared and detailed motion. Any person who is filing a motion to reduce child support based on the grounds of unemployment or underemployment, should retain copies of any termination notices, severance letters, covers letters seeking employment, list of appointments and interviews, job searches and a calender of any daily efforts that were made to find any suitable job. Moreover, you should keep your ex-wife appraised of any of your efforts to find another job.
In my experience, most judges are now granting many Lepis applications based on the grounds of unemployment or underemployment. However, most judges will only grant the applicant a temporary reduction in child support. Most judges will insert into any order that any reduction shall last for only six months, and that their case shall be reviewed once again in six months. The court will want to review the parties' financial situation in six months in the future to assess whether the underemployed spouse has found another suitable job. Moreover, the court will want to review the
unemployed/underemployed spouses efforts to find suitable employment. In theory this is an excellent idea.
All parents should have a strong incentive to keep searching for a decent paying job to support their children. However, this type of order leaves the case open, and many New Jersey families are forced to live in a state of perpetual Lepis litigation. The happy family life as illustrated in the Brady Bunch has been replaced by ex-husbands and wives constantly litigating with each other over Lepis motions, college contribution motions, and applications to terminate alimony. Has life really gotten better since the 70's? I don't think so!
2. My wife and I are getting divorced. My wife refuses to hit the pavement and find a decent job. Will the court impute any income to her when it determines a child support award?
This issue is frequently raised in many cases. However, for most husbands they are fighting a losing battle. In most scenarios wherein a wife is a stay at home mom, the court will only impute an insubstantial amount of income to her. If you are insisting that the court impute income to a stay at home mom, then you are waging a battle that you can't win. The better course of action is to insist on inserting language into the PSA that provides that the issues of child support and alimony will be automatically revisited once the children reach a certain age. Moreover, the payor spouse can insist on language being placed in the PSA that provides that the recalculation of family support shall be automatic, and not subject to the progeny of Lepis cases.
3. I am a divorced father of two girls. I am also a successful lawyer and I earn a six-figure salary. However, I can no longer stand being a lawyer, and I want to go into the teaching field. What are my chances of getting my $400 per week child support obligation(s) reduced if I change fields?
This is an issue that is also frequently litigated in the family courts. A person has a right to pursue work that they enjoy. You should not have to work in a field that you hate. However, your freedom of choice as to how to live your life is counter balanced by the Child Support Guidelines. The Child Support Guidelines Appendix IX-A specifically provide that a person can have income imputed to him if he is found to be voluntarily underemployed.
The seminal case on this issue is Lynn v. Lynn, 165 N.J. Super. 328 (App. Div. 1979). Here, the court looked beyond the husband's reduced earnings to determine his child support. The court made this decision even though it held that Dr. Lynn made a career change in good faith, and not to avoid paying child support. Here, Dr. Lynn made a major decision to change medical careers from oncology to psychiatry. However, by making this career change, he would have to take three before he could return to the practice of medicine. The court accepted Dr. Lynn's position why he wanted to make a career change. However, the court still refused to reduce his child support payments. The court reasoned that Dr. Lynn still had significant savings to enable him to pay his child support.
In summary, your application to reduce child support would probably be "shot down." Applications to reduce child support if the lost of income is voluntary are very carefully scrutinized. The judges simply do not like to take "food" out of the children's mouths. Most judges believe that the child support guidelines are real low. Thus, there is an inherent bias in the courts to be very reluctant to reducing any child support. The only way you have a chance to be successful is if you can provide some strong evidence that it would be harmful to your mental health if you remain in your profession. Moreover, you will have to provide proof that in the long run your new found field of employment will enable you to better provide for your family.
Information provided by:
Theodore Sliwinski, Esq. located at
New Jersey Articles and Resources
New Jersey Divorce Laws
New Jersey: Start Your Divorce
New Jersey Divorce Forum
New Jersey Divorce Source
Copyrightę 1996-. All rights reserved by MH Sub I, LLC dba 3StepDivorce.
Please Read Our Disclaimer