Yes. Rule 5:6B provided that any child support orders issued, modified, or enforced after September 1, 1998, will be adjusted every two years to reflect the increase in the cost of living by the appropriate New Jersey probation department. As a child support lawyer, I embrace this rule because, as well all know, kids only get more expensive as they grow up. Furthermore, over the course of my 20 years as an attorney, I have personally and professionally watched the middle class struggling more and more to make ends meet. The following case is a good explanation of the two-year COLA review of child support.
In Martin v. Martin, the Honorable Judge Haas, of the Superior Court of New Jersey, Family Part of Burlington County explored a child support issue based on the interpretation of the September 1, 1998 amendment to New Jersey Statute 2A:17-56.9a. This question of first impression was never addressed in a published opinion in New Jersey before. Judge Haas explained that according Rule 5:6B any child support orders issued, modified, or enforced after September 1, 1998, the effective date of the rule, will be adjusted every two years to reflect the increase in the cost of living. The cost of living adjustment is based on the consumer price index. The parents must be given both notice of the proposed adjustment, and thirty days to contest the adjustment, before any adjustment is finalized. Both parents retain the right to contest the adjustment, or seek a modification of a past child support order by showing changed circumstances that show the modification is warranted. Passage of time, alone, is not a good enough reason for the court to review the order or require the parents to exchange financial information.
Bertram and Adrianne Martin got divorced on January 22, 2004. Their dual final judgment of divorce incorporated a mutually agreed to property settlement agreement. During their marriage, Bertram and Adrianne had two children together: W., born November 7, 1991, and V., born July 4, 1993. According to the terms of the property settlement agreement, the parents would share joint custody of the kids, and have equal parenting time. The property settlement agreement further provided that neither parent would pay child support to the other parent as long as they continued to share equal parenting time.
Things did not exactly plan out as the parents had contemplated in the property settlement agreement, however, and Bertram started having less parenting time with the kids. This resulted in Adrianne filing a post-divorce motion to have the court establish child support. On June 24, 2005, the court ordered a Title IV-D support order. Title IV-D is a program required by federal law, that provides parentage and support establishment and support enforcement services. It was established by Title IV-D of the Social Security Act on January 4, 1975. The Title IV-D program does many things including: locating parents; establishing paternity; Establishing and modifying support orders; and collecting and distributing support. According to the order, Bertram had an obligation to pay Adrianne child support in the amount of $ 98 every week. On May 29, 2007, Adrianne got a cost-of-living adjustment, and Bertram’s obligation increased to $ 104 every week.
In the case at hand, three years had passed since the original order was entered, and Adrianne filed a motion to increase Bertram’s child support obligation. Usually, before a Family Part court will consider a motion to modify child support, the party requesting the modification must prove that a substantial and specific change of circumstance has occurred since the governing order was issued, that warrants a modification of the support obligation. In this case, Adrianne could not make such a showing. As such, Adrianne relied on the 1995 case of Doring v. Doring, in which the court held child support obligations are subject to judicial review every three years, whether or not there has been a valid change of circumstance since the last order. However, as Judge Haas explained, this decision in Doring was based on statutory law before the 1998 amendment to New Jersey Statute 2A:17-56.9a. Relying on Doring, Adrianne contended that she had the right to a mandatory judicial review of child and discovery of Bertram’s financial information because three years had elapsed since the June, 24, 2005 order.
Judge Haas explained that the Doring case is usually cited in cases where the moving party cannot show the requisite change of circumstances required by Lepis v. Lepis. In the paramount New Jersey Supreme Court case of Lepis v. Lepis, The New Jersey Supreme Court stated that the power of the courts to modify alimony and support orders comes from New Jersey Statute 2A:34-23. The court has the authority to review and modify alimony and support orders upon a showing of changed circumstances. The party seeking modification must demonstrate that changed circumstances have substantially impaired the ability to support himself or herself. This involves the full finding of the dependent spouse’s financial status. In Martin the problem was that New Jersey Statute 2A:17-56.9a, the statute the Doring decision was based on, was amended in 1998. The amendment got rid of the automatic three-year judicial review provision. Because this 1998 amendment had not be addressed in a published decision by the time Adrianne filed her motion, litigants between that time continued to seek the three-year judicial review of child support discussed in that case.
Before the 1998 amendment to New Jersey Statute 2A:17-56.9a, federal law required that for states to receive federal money for its Title IV-D child support program, that “state must have in effect laws requiring the periodic review of all Title IV-D child support orders” New Jersey Statute 2A:17-56.91 was enacted for this this purpose. The law states that all IV-D orders for child support payments would be reviewed every three years. The review would be take into account any changes in financial circumstances of both parents, and if the child support order is fully compliant with the child support guidelines. Using this statute, the court in Doring found that all child support orders are subject to this judicial review every three years, if there has been a change of circumstance or not. However, after this decision, the New Jersey Legislature amended the statute. After the amendment New Jersey Statute 2A:17-56.9a provided that Title IV-D child support orders would be up for review every three years unless the State developed an automated cost-of-living adjustment program for child support obligations.
The New Jersey Supreme Court adopted Rule 5:6B on July 10, 1998. Rule 5:6B provided that any child support orders issued, modified, or enforced after September 1, 1998, the effective date of the rule, will be adjusted every two years to reflect the increase in the cost of living. The cost of living adjustment is based on the consumer price index. The parents must be given both notice of the proposed adjustment, and thirty days to contest the adjustment, before any adjustment is finalized. Even with this rule, parents still retain the right to file a motion for modification of child support based on a showing of changed circumstances. As such, child support obligations do not automatically get reviewed by a court every three years any more. Rather, child support payments are adjusted, automatically, every two years so that they reflect the cost of living. Both parents retain the right to contest the adjustment. According to Rule 5:6B, contests are limited to: when a paying parent’s income has not increased rate level equivalent to the rate of inflation; or when the order already provides for an alternative adjustment period. In all other circumstances, parents can contest an cost-of-living adjustment, or seek a modification of a past child support order by showing changed circumstances that show the modification is warranted. Passage of time, alone, is not a good enough reason for the court to review the order or require the parent’s to exchange financial information.
In Martin, Judge Haas applied Rule 5:6B and the 1998 amendment to New Jersey Statute 2A:17-56.9a, and held that Adrianne requested a modification of Bertram’s child support obligation based on the passage of three years’ time since the last child support order could not be considered. However, she was still entitled to the cost-of-living adjustments, but in order to seek a judicial review of child support she would have to prove a substantial change of circumstances. Adrianne failed to make this showing, and therefore her motion was denied.
If you face a child support issue in New Jersey, please contact my office today.