With some exceptions, settlements are always favored by both divorce lawyers and judges alike here in the state of New Jersey. This is even more essential when children are involved with the hope that the parents will make further agreements that are in the best interests of their children moving forward. While the attorneys at my Middlesex County, New Jersey based law firm promote settlement agreements, sometimes circumstances change, and an arrangement that once seemed fair now may not be. For example, a showing of changed circumstances is required when the parents had a previous agreement as to payment of extracurricular activities. It is essential to keep in mind that absent showing a change of circumstances, the original agreement shall stand.
In the recent case of Elgart v. Elgart, the Appellate Division considered the modification of a child support award where the incomes of the two parties exceeded the child support guidelines. The New Jersey Appellate Division held that whether or not these provisions were included in the property settlement agreement, the family court can modify them upon a showing of “changed circumstances.”
Irina and Michael were married on August 17, 1997. A son was born to them on June 2001, and a daughter in June 2005. The couple filed for divorce on March 20, 2009. In the months leading up to the divorce, the couple sold the marital house and Irina filed a motion to relocate to Pennsylvania with the children. They agreed to the relocation pursuant to a pendent lite consent order on June 19, 2009. On March 8, 2010, the judge dissolved the marriage on the record. The court directed Michael’s attorneys to draft the final judgement of divorce, and to incorporate the decisions made by the judge in doing so. On April 5, 2010, Irina and Michael filed a consent agreement resolving some, but not all of their issues. Negotiations proved unsuccessful, and after several months the judge held a hearing to complete the dissolution of the marriage. On October 20, 2010, in an effort to finalize the divorce and resolve the deadlock, the judge struck down any provision in the property settlement agreement that the parties could not agree upon. In addition to numerous other changes, the judge modified Article 1.4 so that it excluded the list of extraordinary expenses. When the final judgment of divorce was entered later that day, it incorporated the version of the property settlement agreement revised by the judge.
The final property settlement agreement reflected the parties’ agreement to deviate from the New Jersey Child Support Guidelines. Under Article 1.2, Michael was required to pay Irina $ 1350 monthly in child support for their two children. The agreement also stated that the parties knew this amount was $ 200 over the guidelines. The agreement further provided that Michael would be responsible for 55% of the children’s extra-curricular activity expenses, and uninsured medical expenses. Article 1.2 also provided that any future adjustments would be pursuant to Article 1.3, however, Article 1.3 was struck out by the court on October 20. Article 1.4 of the property settlement agreement covered extraordinary expenses for the children. This included recreational and extracurricular activities. Irina was to pay 45% and Michael 55%.
Irina filed an appeal and argued that the court was wrong when it failed to include the deleted paragraphs, and by not requiring that Michael be responsible for all of her requested expenses for their children.
The New Jersey Appellate Division started its opinion by stating that the review of trial court’s finding of fact is limited. Generally, findings by the trial court are binding on appeal as long as they are supported by adequate, substantial, credible evidence. Appellate courts give particular deference to a trial judge’s fact-finding because of the Family Part’s special jurisdiction and expertise in family matters. A reversal of a trial court’s decision is only warranted when a mistake must have been made because the trial court’s factual findings are so clearly unsupported by or inconsistent with the credible evidence as to offend the interest of justice.
The New Jersey Appellate Division noted explained that property settlement agreements are basically contracts between divorcing spouses and should not be unnecessarily disturbed or changed. When issues in dispute in a post-divorce motion are addressed in a property settlement agreement, the agreement is “entitled to considerable weight with respect to is validity and enforceability in equity, provided it is fair and just.” As a general rule, courts should enforce contracts in the manner the parties intended at the time of execution. If the meaning of the provision is ambiguous or in dispute, the courts role is to consider what is written in the context of the circumstances at the time of the drafting and to apply a rational meaning in keeping with the expressed general purpose.
After a final judgment of divorce has been entered, a showing of changed circumstances is required in the modification of both child support and alimony. Then, the court will consider both the finances of both parents, and the best interests of the children and determine a solution that is equitable to both parties. A few examples of valid changed circumstances include: an increase in living cost; increase or decrease in the supporting spouse’s income; illness or disability; the dependent spouse living with another partner; or employment by the dependent spouse. Courts have consistently rejected requests for modification for temporary changes in circumstances, or expected changes that have not occurred. An increase in children’s needs due to maturing has also been held to justify an increase in support as long as the supporting parent is financially able.
The New Jersey Supreme Court has also noted that the dependent spouse’s ability to contribute to his or her own expenses, both at the time of the original judgment and during when the modification is requested should be considered. The extent of economic reliance, not a status as a wife, must determine the length of support as well as its amount. Gender is no longer an acceptable reason for economic need. Need must be calculated based on the earning capacity of the individual spouse in the marketplace.
The New Jersey Appellate Division relied on the case of Dolce v. Dolce, which stated that the inherent equitable powers of the Family Part allows its judges to revise and modify support orders from time to time as circumstances many require, even if that order is the result of a mutually agreed to settlement agreement. Therefore, the court remains free to change a prior arrangement only if circumstances have changed in such a manner that the support provision would no longer be equitable and fair. The duty of support is always subject to review and modification on a showing of changed circumstances. Because of Dolce, the New Jersey Appellate Division thought it was clear that whether or not these provisions are included in the property settlement agreement, the Family Part can modify them upon a showing of changed circumstances.
Please reach out to my office if you are handling issues with child support.