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Divorce Settlements are Not Always Written in Stone
I have just lost my job at the GM plant wherein I worked for the last 20 years. I can no longer continue to pay my former wife $250 per week in alimony. Can I go back to court and try to contest my divorce settlement?
Yes, you certainly can file a motion to try to reopen up your divorce case. Many New Jersey-ites are faced with the problem of having no work, or of having another family to support. Thus, many New Jersey-ites are doing what a growing number of divorced men and women are doing: They are filing motions for reductions in alimony and child support payments. The recession has ignited a dramatic increase in applications to change divorce settlements. The tidal wave of post-judgment applications is an enormous issue and an enormous problem for both the many New Jersey-ites and for the family court system. The family courts simply do not have enough judges to hear all of these post-judgment applications that are filed. Meanwhile, many people simply do not have the financial means to litigate post-judgment motions.
How do the New Jersey courts generally handle motions to reduce alimony and/or child support?
It was once very rare for a judge to grant motion(s) to reopen up a divorce judgment. These motions were in the past called change of circumstance(s) applications. In the past divorce settlements/judgments were considered to be written in stone. Therefore, in the past child support and alimony were very rarely reduced. However, as economic times have become increasingly harder, the family courts are now increasingly inclined to grant more and more post-judgment applications. Based on my experience there is now a perception amongst the family court bar and of family court judges that the claims of woe of financial hardship are more likely true than not. Therefore, many judges are now much more inclined to accept the argument that a person can't find a job or that his or her income has been sharply reduced.
Do the family court judges have an increased empathy for motions to reduce alimony and/or child support?
The quest to obtain for financial relief from never-ending child support and/or alimony payments has spread all across all types income brackets. An experienced and learned family lawyer should always encourage divorced couples to settle their affairs without a judge if possible. The cost of going to court is extremely expensive. Thus, anything that you can do outside of the court house saves the client money, time and aggravation.
To obtain a reduction the person seeking relief must file a motion and provide their former spouse a chance to respond. Thereafter, the judge could render a decision based solely on the legal papers, with or without oral argument. If there are conflicting facts raised, then the judge can schedule a plenary hearing. This legal process can be lengthy and expensive. Moreover, if you are granted a plenary hearing, quite often these court dates are adjourned several times. These adjournments will drive up the cost of the post-judgment litigation substantially.
The success of a post-judgment motion, in most instances depends on the reliability of the financial information that is disclosed. Moreover, the family courts will place significant weight on the effort that the applicant has made to find comparable employment or to liquidate assets. There are no statistics on how many post-judgment reductions are being granted. However, in my experience the family courts have been much more willing to reduce child support and alimony than they have in the past. Now, most judges seem to agree that both spouses have to make financial sacrifices in these tough times. Many judges sincerely believe that there needs to be a sharing of the pain by both sides.
Nonetheless, the process of reopening old divorce cases can be very hard on both parties on a financial and emotional level. Some of the most difficult cases for the family law practitioner are the post-judgment cases. Here, many New Jersey-ites have been divorced for quite a while, and the spouse who is paying the support is trying to reduce that. There are often quite a lot of anger and distrust and mistrust, even if the divorce was 10 or more years ago.
For those fortunate enough to obtain a reduction of child support or alimony, their luck may be short lived. Once the recession fades away there is nothing to stop a spouse from going back to court and filing another motion to request that the child support and/alimony be increased to its former level or to an even higher amount.
New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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