It has just been reported that the unemployment rate in New Jersey is approaching 10%, the highest it has been in decades. It has also been reported that divorce filings are down in this period of recession, presumably because couples cannot afford to split up. The same does not appear true, however, for modification motions.
At the time of a divorce, alimony and child support are based on the parties’ incomes. If there is a substantial change in circumstance after the initial support is set, such as the loss of employment due to no fault of your own (i.e., layoffs, plant and store closings, corporate bankruptcies), you may wish to file an application with the court, called a motion, to decrease your support obligations.
In any modification case, the burden of proof to establish a substantial change in circumstance is on the party seeking change. It is not prudent to run into court on the heels of losing your job without having taken the steps necessary to prove your case. A court must not only weigh the payor spouse’s circumstances in deciding when, if, how much and for how long support obligations should be modified, it must also take into consideration the effect any modification will have on the payee spouse, including the children.
In seeking modification, the payor spouse must file a certification with the court setting forth the facts which would convince a court to modify support. You must attach proof to that certification which captures the time and effort you put into finding another job. Copies of letters and resumes sent by email or snail mail to companies looking for employees is a start. Most job seekers these days will post their resume on employment websites such as monster.com or careerbuilder.com, but this does not quantify the effort made. Keeping a log of prospective employers who contact you with the date and synopsis of the conversation or copy of email responses is better proof. Copies of rejection letters, if an employer bothers to send one, are also helpful. The log should include dates and outcomes of interviews, any employment offers made, and reasons why an offer was not accepted. Any hard evidence that would support the log is a must.
In addition, the supporting spouse should certify as to efforts made in reviewing local newspapers and trade or industry journals for employment opportunities. Obtaining a headhunter and documenting all job leads, interviews and rejections is also suggested. Many times the prior employer will offer laid off employees time with a counseling or other firm as part of their severance package. All of this information must be pooled together, with supporting proof and made part of any certification accompanying a motion for modification.
In searching for employment, it may no longer be acceptable to apply for jobs only in your residential area, or only in your specific field. If expanding your job search in these ways bears no fruit, then accepting a decrease in pay may be the only option available if you have been in the market for a period of time with no results.
If a party does accept a job with lesser pay after a diligent search, it will be much easier to deal with a motion for modification of support. If the proofs are there as to the efforts made for a comparable job to your prior employment, and you have not been able to obtain comparable employment given the state of that industry, then the court will rely on the lesser income in modifying support, absent evidence undermining the payor spouse’s proofs.
If, on the other hand, you have not made a zealous effort and have just accepted a job making lesser pay without proving your effort, then a court may not modify your support payments.
The New Jersey Appellate Division set forth factors which the trial court should consider in a case dealing with a career change and lesser income. These factors include: the reasons for the career change (both the reasons for leaving the prior job and the reasons for choosing the new job); disparity between prior and present earnings; efforts to find work at comparable pay; the extent to which the new career draws or builds upon education, skills and experience; the availability of work; the extent to which the new career offers opportunities for enhanced earnings in the future; age and health; and the former spouse’s need for support.
As one can glean from the above suggestions, a motion to modify support based on job loss should not be filed quickly, even though you may want and need fast relief. While courts are now considering motions to modify support based on job loss much more quickly than they have in the past, you must still present a compelling case.