A client walks into New Jersey divorce and family law firm seeking legal advice. She explains to me that her ex-husband has moved out of the country and has completely stopped paying child support. My new client continues to tell me that the New Jersey family court has issued a bench warrant for his arrest, yet still she hasn’t heard anything from him. However, the reason she has come to my office seeking an attorney who handles only family law cases including child support. This is because now her husband is trying to have his support obligations reduced, even though he is still living outside of the country and there is an outstanding warrant for his arrest.
She then asks me if she can prevent him from trying to have his support reduced because there already is an outstanding warrant for nonpayment. While I assure the client that there are many ways to try and rectify the situation, it is unlikely that the court will prevent the husband from trying to have his support reduced simply because he has failed to pay it in the past. That was the case in the recent case of Ort v. Ort. I then explained the following to my client.
In the case, the parties were married for twenty-three years, but divorced in 2007. Thirteen children were born of the marriage. Of the thirteen, eight of the children were unemancipated at the time the parties divorced. The wife had primary residential custody over the unemancipated children.
After consenting to engage in arbitration, the parties were finally able to determine a child support award. The husband was responsible for paying $11,000 per month in child support to his ex-wife, a number the court determined based on his imputed earned income and income from a building in New York City. However, once the support amount was set, the husband decided to not pay any of it to his ex-wife.
In 2008, the court issued a bench warrant for the husband’s failure to pay the designated child support amount; however, he fled the country and continued to live outside of it. By April of 2012, the husband’s arrears were set at $561,595. Once he learned of this high amount, he argued that his ex-wife had already received more than $1.5 million through disbursements from custodial accounts created entirely by his family. To strengthen his argument, the wife even conceded that she had been supporting herself and the children from the custodial accounts.
By 2013 only one of the parties’ children was still unemancipated. Additionally, the wife obtained employment outside of the home; both factors that could have potentially changed the amount of child support the husband was responsible to pay. Therefore, in February the husband decided to file a motion seeking to first vacate his bench warrant and then to modify his child support obligation. As a response, the wife also filed a motion requesting the judge to not grant her ex-husband any relief until he personally appeared in the courthouse and satisfied the condition to purge (I.e., payment in order to have the warrant lifted) the warrant for his arrest. She argued that he hadn’t complied with any aspect of the arbitration award and was engaging in litigation from outside the country just to harass her.
The trial court discussed the possibility of applying the Doctrine of Fugitive Disentitlement to address the issue of the husband attempting to engage in litigation while living outside of the United States. The court stated that the following factors must be satisfied in order to invoke the doctrine upon the husband:
(1) The husband must be a fugitive in a civil or criminal proceeding
(2) His fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked
(3) Invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status
(4) Invocation of the doctrine cannot be an excessive amount
However, the court decided not to invoke the doctrine. The judge noted that it was rare to utilize the fugitive disentitlement doctrine in a child support case to prevent the payor from seeking to have his support reduced, even if there was an outstanding warrant for not paying support. Furthermore, the judge held that if the circumstances had significantly changed, the husband should be entitled to try and have his support obligations reduced.
Since the court did not yet rule on whether or not to reduce the husband’s child support obligations, please stay tuned for any legal updates. At the Law Offices of Edward R. Weinstein, we will continue to provide you with the most recent legal developments as they unfold. To discuss this issue further, please do not hesitate to contact my office today.