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Support Obligation Modification

As a family law attorney in these tough economic times I am often asked two related questions: Can I have my support obligation modified and, if so, what do I need to do to have my support obligation modified?

The short answer to the modification question is yes; both statute N.J.S.> 2A:34-23 and the case law Lepis v. Lepis 83 N.J. 139 (1980) allow for modification of an existing support obligation. In the Lepis case the New Jersey Supreme Court said that support arrangements are always subject to modification up on a showing of changed circumstances. It is the moving party's responsibility to show changed circumstances warranting a modification of an existing support order.

Wether or not a party has demonstrated changed circumstances derives from a comparison of the parties' economic life during the marriage with the present economic conditions. However, it is important to note that courts have consistently rejected requests for modification based upon circumstances which are only temporary in nature.

By far, the most important case to cite when defending an alimony reduction motion based on the improved economic condition of the dependent spouse is Glass v. Glass, 366 N.J. Super. 357 (App. Div. 2004). Here, the plaintiff Keith Glass, argued that there were changed circumstances, and he filed a motion to terminate his alimony. The changed circumstances did not constitute an inability to pay the alimony. Instead, the ex-husband maintained that the defendant's income was now sufficient for her to maintain her own marital standard of living. After a lengthy and expensive plenary hearing, the motion court concluded that the defendant could maintain a reasonable marital standard of living on her current income. Thus, the wife's alimony was terminated. The motion court further held that it found that "no equities" that weighed in defendant's favor. On appeal the case was ultimately reversed.

The second question - what do I need to do to have my support obligation modified? - is much harder to answer.

First you should not file a motion seeking modification of a support obligation prematurely. If your change of circumstances is the loss of employment and you are receiving unemployment benefits most courts will not modify your support obligation, as your unemployment is not considered a permanent change of circumstances.

There are certain things that must be done in preparation for filing a modification motion. You must compile all documents that will accompany your motion as exhibits. These documents must include your Case Information Statement (a Court document that represents your budget and sets forth your assets and debts) from the time of the initial support order, as this document must be included in your filing pursuant to the Court's Rules. You must also prepare a current Case Information Statement. These documents will allow the Court to compare your current financial condition to that which exists at the time of the initial order.

If you are seeking modification of an existing support order because you have lost a job you must be able to demonstrate to the Court that the loss of that job has affected your ability to earn income at your previous level. This is necessary because the court determines your support obligation based on your ability to earn not based upon your actual earnings.

Therefore, before filing a motion to modify you should conduct an extensive job search. This serve two purposes: First, it may lead to a job that will allow you to meet your support obligations; and second, it will demonstrate to the Court that no jobs exists that will allow you to meet your support obligations. Documentation showing your job search should include: proof that you have forwarded your resume to prospective employers; proof that your resume was received by the prospective employers, if same exists; proof of all interviews which you attended; and, proof of any follow up you did with each prospective employer.

If after your initial job search you are unable to find a job earning income at your previous level you should then attempt to find a job at a lower income level; and, if successful in that job search you should accept the new employment. This will demonstrate to the court your new earning ability.

Once you have complied all the necessary documents you are ready to file your motion for modification. In the Certification in support of your modification motion you will then explain to the court your changed circumstances and how they make it impossible to meet your current support obligations.

In reviewing your modification motion the court must go through a two stage process. First, the Court must determine if you have made a prima facie showing of changed circumstances. If the court determines that you have made a showing of changed circumstances it will then order an exchange of financial information. This information exchange is necessary because up to this point the court has seen no financial information for the supported spouse.

After the court reviews the financial information from the supported spouse it can either modify your support obligation, or schedule a plenary hearing (trial) to determine how much you can afford to pay and how much the supported spouse can accept. In making this determination the court must attempt to keep each party as close to the standard of living enjoyed during the course of the marriage while at the same time acknowledging that the changed circumstances in your case will not allow either party to maintain that standard of living.

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