The termination of an obligor’s alimony obligation occasioned upon the payor’s retirement is not automatic.  It is up to the obligor to file an application with the Court for a modification or termination of their alimony obligation.  In determining whether an obligor’s impending retirement constitutes a substantial change in circumstances warranting a modification or termination, the Court must consider: (1) the age and health of the party seeking to retire and (2) the motive and timing of the impending retirement.  The Court will also look to the obligor’s ability to pay alimony after retirement, and the dependent spouse’s ability to provide for themselves, which involves an examination of both parties’ incomes and assets.  In the event the Court determines that the reason for the obligor’s retirement is to avoid his or her alimony obligation, the application will be denied.    

Even if the Court determines that the payor has advanced a good faith reason for retirement, the Court must then decide whether the advantage of the retirement to the retiring spouse outweighs the disadvantage to the other party.  This determination is critical to the analysis.  If this inquiry is answered in the affirmative, only then will the Court address whether and to what extent the payor’s alimony obligation should be modified. 

In the event that the Court determines that the advantage to the payor in retiring does not “substantially outweigh” the disadvantage to the participant, then the payor’s retirement–even if pursued in good faith–will not be a basis to modify their alimony obligation.  This is a fact sensitive inquiry that the Court determines on a case-by-case basis. 

Of course, divorcing parties have the ability to negotiate through counsel an automatic date for the termination of alimony, if both parties agree.  If an agreement is reached that contemplates an automatic termination of alimony upon a triggering event (reaching a certain age, retirement, etc.), courts will enforce that agreement.  In negotiating these provisions, it is important that the payor of alimony understand that this is a benefit they would not normally receive and must be willing to offer something in exchange for an automatic termination.   

If you are contemplating a divorce, or are divorced, have an alimony obligation and are considering retirement, it is important to consult with an experienced family law attorney to determine how to best proceed.  
 

Corrine Cooke is a member of Stark & Stark's Divorce Group in our Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Cooke: ccooke@stark-stark.com.

The Court rules further clarify that the decision whether to conduct an interview of a child or not rests within the sole discretion of the Family Court Judge, irrespective of the age of a child. This decision will only be disturbed if the Family Court Judge abused their discretion. 

The Court Rules require that the decision to conduct an interview shall be made before Trial. If the Court decides not to interview the child, they shall place the reasons for their decision on the record.  If the Court decides that they will interview the child, counsel for both parties shall be afforded the opportunity to submit questions for the Court’s use during that interview.  If the Court decides not to ask a question that has been submitted by either party, it shall place on the record the reason for not asking the question. A transcript must be made of each interview, and shall be provided to counsel and the parties upon request.

In a recent Unpublished Appellate Court Decision of Jannarone v. Jannorone, the Appellate Court reversed the Trial Court’s decision where the Trial Court declined to interview a 16 year old child.  In declining to interview the child, the Trial Court stated it “clearly prefers to involve the children as little as possible in these litigation issues” and “to interview her directly ... will not have so significant impact on the Court as to justify the turmoil and tribulation said interviewing process may have on the child.”

The Appellate Division looked to the case of  Macknowski v. Mackowski, where  the Appellate Division previously held that the “value of a properly conducted interview” of a 16 year-old child “outweighs the possibility of harm” that could result from that interview.  317 N.J. Super. 8, 14 (App. Div. 1998). The Appellate Division also looked to a Supreme Court decision which provided that “the family court would benefit from hearing the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express an intelligent opinion.”  N.J. Div. of Youth & Family Servs. V. E.P., 196 N.J. 88, 113 (2008). 

In the case at hand, the Appellate Division ultimately found that the child was a well-adjusted honors student, who has never been in trouble. The Appellate Division also found that there was no reason to believe that the child could not cogently express her views. The Appellate Court reversed this decision, and concluded that the Court should have interviewed the child and considered her wishes. 

Although the Court Rules state that the decision to conduct an interview of a child in a custody proceeding rests within the discretion of the Trial Judge irrespective of the child’s age, it is clear that the age and maturity level of the child are critical factors the Court should consider in deciding whether to conduct in interview of the child.

The Appellate Division in Cantelme (f/k/a) Archetti v. Archetti recently clarified that a prima facie case of a substantial change in circumstances can be shown in several ways. This includes showing a decrease in the financial resources or income of the supporting spouse, or combination of changes in the part of both parties which together have altered the status quo which existed at the time of the entry of the support order. The latter includes a situation where the supported spouse experiences an increase in income and the supporting spouse experiences a decrease in income.

In deciding whether a modification is proper, a Court must consider several factors including the dependent spouse’s needs, the dependent spouse’s ability to contribute to their own needs, and the supporting spouse’s ability to maintain the dependent spouse at the former standard.

Once the moving party has made a prima facie showing of substantial change in circumstances, the Court may then Order further discovery of both parties’ finances. The Court then determines whether the change in circumstances have “substantially impaired” the moving party’s ability to support themselves. The Court must then decide the ultimate issue of whether the moving party is entitled to relief, or whether the Court should conduct a plenary hearing. A plenary hearing is required only when there are genuine factual issues that are disputed by the parties. 

The standard for a modification of child support is altogether different. Where a modification of child support is sought, the guiding principle continues to be the “best interest of the child.”

If you believe that you may be entitled to a modification of an alimony or child support obligation, it is advisable to contact an attorney that specializes in family law to discuss your case.

Once an Order is entered regarding custody and parenting time, either by the Court or with the consent of the parties, that Order will control.  However, a modification of a custody and parenting time Order is  permitted in certain circumstances.

In order to modify a custody and parenting time Order, the party seeking the modification must first establish that circumstances have changed since the custody and parenting time order was first entered, and that that, as a result of that change, the present Custody and Parenting Time Order is not in the child(ren)’s best interests.

Otherwise stated, the party seeking to modify must  prove three things:  1) the current parenting time arrangement, 2) the change in circumstances that occurred after the initial Order was entered, and 3) the new circumstance has made current parenting time arrangement contrary to the children’s best interests. 

Although modifications are permitted to Custody and Parenting Time Orders, you should consult with a divorce attorney at the outset of your case to help negotiate your Custody and Parenting Time Agreement.

However, in 1995, the Court held in Doring v. Doring that child support orders are subject to review by a Court every three years.  In this decision, the Court relied upon a statue which required this automatic three year review.  This decision enabled a party who is unable to show that a substantial change in circumstances to apply for a recalculation of child support simply because three years has passed since child support was calculated. 
 

A Trial Court decision addressed the application of the Doring v. Doring decision today and, in a published decision, held that child support orders are not, in fact, subject to automatic court reviews every three years.  The Court reasoned that the statue upon which the Doring v. Doring decision was based was amended in 1998, years after the Doring decision.  The statute now states that child support orders should be reviewed at least once every three years, unless the State has devleoped an automated cost-of living adjustment program for child support payments.   Rule 5:6B was also adopted in 1998, which requires that all child support orders to be adjusted every to years to reflect the cost of living. 
 

Because New Jersey Child Support Orders are subject to cost of living adjustments every two years, the automatic three-year review set forth in Doring v. Doring is no longer necessary or appropriate. 

Why does this designation matter?  Because the New Jersey Child Support Guidelines state that child support is divided into three categories: fixed expenses (representing 38% of the child support obligation), variable expenses (representing 37% of the child support obligation), and controlled expenses (representing 25% of the child support amount).

Fixed expenses are incurred by both parents despite whether the child is residing with the parent at that time.  These costs include housing-related expenses, such as mortgage, rent, utilities, and furnishings.  Variable costs are also incurred by both parents and are only incurred by a parent when the child is with the parent.  These expenses include transportation costs and food. 

The third and last category of a child support award is “controlled expenses.”  These expenses include clothing, entertainment, and personal care.  While the Child Support Guidelines recognize that both parents incur fixed and variable expenses, the guidelines presume that only the Parent of Primary Residence incurs controlled expenses, and apportion controlled expenses between the parties based on their income shares.

In Benisch v. Benisch, the Appellate Division recognized that, in true Shared Parenting Time Arrangements, the New Jersey Child Support Guidelines are unfair because both parties are incurring “controlled costs” for the child, but the Guidelines only give this credit to the Parent of Primary Residence.  The Guidelines therefore result in the payor paying these expenses as child support, and again to the child during their own parenting time.  The Court in Benisch recognized that an adjustment to the payor’s child support obligation was needed to correct this oversight, and remanded the case to the trial court to determine said adjustment.  However, the Court in Benisch failed to set forth a specific formula for making this adjustment. 

Thus, until recently, divorce attorneys have had little guidance from the Court regarding this adjustment.  However, Deffler v. Deffler sets forth a specific formula for adjusting the payor’s child support to take into account that both parents pay controlled expenses.  In a well-written opinion, the trial court judge outlined a three- step formula to make the necessary adjustments.  First, the basic child support amount should be multiplied by the payor’s income share.  Second, that figure should then be multiplied by 25%, which is the amount of the child support obligation attributable to the controlled expenses.  Third, that figure is then subtracted from the payor’s “Adjusted Basic Child Support Amount.” The result of this opinion is that the controlled expenses are “backed out”from the payor’s child support obligation, so they no longer incur these expenses twice.

This opinion clarifies a previously ambigious area of family law, and gives divorce attorneys and courts alike much needed guidance in calculating child support in shared parenting time arrangements.

The Court also has the power to impute income to a party that they find to be voluntarily unemployed or underemployed.  A Court may look to potential employment and earning capacity based on the person’s work history, earning history, occupational qualifications, and educational background. 
 

Given these circumstances, it is imperative that a person seeking a reduction in alimony and child support has proof that they have been actively seeking employment and have been unsuccessful.  Copies of job applications, resumes sent to prospective employers, and rejection letters are very helpful in doing so.  In addition, a meeting with an Employment Counselor may strengthen your chances of being successful in your application.
 

In addition, a recent Appellate Decision affirmed a Trial Court’s denial of a modification application based on an alleged decrease in income.  In Donnelly v. Donnelly, the applicant was an attorney whose original child support and alimony obligations were based on an income of $185,000.00.  The applicant cited a decrease in income as the substantial change in circumstances.  Specifically, the applicant stated that he would only earn $50,000.00 in 2007 due to his practice’s deteriorating case load.
 

The Appellate Division found that the Trial Court correctly focused on the applicant’s lifestyle, as evidenced by the Case Information Statement filed with the Court.  The Case Information Statement listed a monthly budget of $11,000, even though the applicant asserted he earned only $100,000.00 per year.  Therefore, the Court found that the applicant was not credible.  The Court also focused on the fact that the applicant had recently purchased a $58,000.00 Lexus and an $800,000.00 home.  The Court found that the applicant was merely seeking to have his children and ex-wife bear the brunt of the luxurious lifestyle.  As such, the Appellate Division affirmed the Trial Court’s decision to deny the applicant’s motion. 
 

It goes without saying that the accuracy and reasonableness of your Case Information Statement is of the utmost importance when filing a modification application.  As evidenced by the Court’s ruling in Donnelly, an inaccurate CIS may itself be a basis for a denial of your application.
 

If you are laid off, unemployed, or have experienced a loss in income recently and would like to apply for a reduction in your alimony or child support obligation as a result, you should consult with an experienced divorce attorney immediately.

a.     the obligor’s address and social security number,
b.     the name and address of the obligor’s employer and any other source of income of the obligor
c.    a description and location of the property of the obligor in this State not exempt from execution

(5)    the name and address of the oblige and, if applicable, the agency or person to whom support payments are to be remitted.
 

These situations are not uncommon.  The Court issues Orders, but rarely, if ever, polices them.  The Court is just too busy.  It is up to the parties themselves to enforce the Orders.  The parties know whether the other party is complying or not.   If one party to the litigation is not complying, they must bring it to the Court’s attention.  How do you do this, you ask?

By filing a motion.  A party seeking to enforce an Order must file a Motion to Enforce that Order in the Family Part of your County.  Although you can file these motions pro se (without an attorney), it is always advisable to retain a divorce attorney.  The New Jersey Rules of Court are very specific, and it is difficult to ensure that you have met every requirement.  A Court can deny your motion on procedural grounds if all of the requirements of the Court Rules are not met.  A divorce attorney knows these requirements and will ensure that these requirements are satisfied and that your motion will not be dismissed on procedural grounds.   

If the Judge deciding your motion finds that the other party is not complying with a previous Court Order, he or she may award you counsel fees if you have an attorney, and may even impose sanctions on the non-compliant party.