Often times if a court is trying to grant a child support award, but one of the parents is voluntarily unemployed or underemployed, the court will impute income to best reflect the party’s earning potential in his or her profession. As a practicing family law attorney for over twenty years in the field, I find that several of my clients want to know what standards will be utilized when making such a calculation. Sometimes the court will impute income based on the average earnings for the parent’s current or former occupation as reported by the New Jersey Department of Labor. However, the recent case of Santiago v. Concepcion illustrates an instance where a NJ family court believed the NJ Department of Labor statistic was too high and used its discretion to impute income instead. Let’s take a closer look.
Child Support
How Can a New Jersey Child Support Lawyer Help Me Make Sure I Receive My Money?
When handling issues such as New Jersey Child Support and Alimony, a common question is whether the support can be made directly. As a New Jersey Child Support Lawyer I immediately explain to my client that if they are willing to except the payments directly, they do so at a risk. Under the New Jersey Child Support law, unless the recipient is willing to accept direct payments, the Family Judge will automatically order that said payments to be made through the Probation Department in the county that they reside in.
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Does A Change In Child Custody Automatically Cause Child Support To Be Recalculated?
No. Under New Jersey law, when a change of custody of a child occurs from one parent to another, the new custodial parent must have child support addressed by the Superior Court of New Jersey at that time. If they wait, then will not be successful in obtaining retroactive credit and thus shall still legally owe that support, even for the time the child was living with them. As New Jersey child support lawyers, the attorneys at our law firm here in New Jersey handle child support matters on a daily basis. The following case demonstrates how important it is not to just “assume” everything is fine because two parents were able to resolve certain matters that it obviates the necessity to have a your lawyer take care of the situation legally right when the transfer of custody occurs.
Why Must I Have Life Insurance If Alimony or Child Support Is Part Of My Divorce?
In a New Jersey, seasoned divorce attorneys understand that, in addition to alimony and child support, most divorce orders or settlement agreements also contain provisions for maintenance of life insurance by the supporting spouse for the benefit of the supported spouse. The experienced attorneys at my law firm understand that, like all support provisions, New Jersey divorce courts place great importance on the enforcement of life insurance provisions, and take a failure to maintain such an obligation very seriously. In Ashmont v. Ashmont, the Honorable Judge Jones of the Ocean County Family Part court found that ex-husband, Steven Ashmont, failed to abide by the life insurance obligation provision in his property settlement agreement, and order two forms of relief to remedy the failure. Judge Jones ordered: (1) a change of ownership of the current policy; and (2) financial sanctions against Steven.
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If My “Ex” Wants To Reduce Alimony Or Child Support After My N.J. Divorce, How Does My Lawyer Defend Me In Court?
As a lawyer who only practices divorce and family law, I have defended clients on many post-judgment (i.e., after the divorce has been finalized) motions filed by their “ex” to lower alimony and child support payments. The attorneys at my law firm deal with this issue on a weekly basis as such motions to the Superior Court of New Jersey are quite common. Below, please find a hypothetical legal briefs which not only clearly states the law but also shows how detailed the lawyers at my law firm are when defending motions to lessen alimony and child support: [Read more…] about If My “Ex” Wants To Reduce Alimony Or Child Support After My N.J. Divorce, How Does My Lawyer Defend Me In Court?
Do People Go To Jail For Unpaid New Jersey Alimony or Child Support?
The short answer I yes, they do. However, my experience as a New Jersey Family Lawyer dictates that usually incarceration is the “last resort,” for unpaid NJ Child Support or Alimony. When support is being paid through the Probation Department, I always tell my client’s to “schmooze” the Case Worker handling their account. Then, if the offender becomes deep in arrears, the Case Worker can have a warrant issued right then and there. Some people mistakenly displace their frustrations at their Case Worker. Big mistake. As the old expression says, “You can catch more flies with honey than with vinegar.”
Please also refer to a piece I wrote earlier this year, “How Can a New Jersey Child Support Lawyer Help Me Make Sure I Receive My Money?”
The New Jersey Code of Criminal Justice classifies willful non-support of a spouse, child or other dependent as a fourth degree offense. Title 2C, specifically section 24-5 provides the following: a person commits a crime of the fourth degree if he willfully fails to provide support which he can provide and which he knows he is legally obliged to provide to a spouse, child or other dependent. In addition to the sentence authorized by the code, the court may proceed under section 62-1.
Provisions of 2C: 62-1 merely provide alternative sentencing for willful non-support of a spouse, child or other dependent. Subsection (a) of the provision addresses an order for support pendente lite. It is relevant to note that at any time after a sworn complaint is made charging an offense under 2C:24-5 and before trial, the court may enter such temporary order as may seem just, providing for the support of the spouse or children, or both, pendente lite, and may punish a violation of such order as for contempt.
Furthermore, a court can order community service instead of incarceration for non-support violations. The relevant provision of the New Jersey Statutes Annotated is 2A: 34-23e. This section of the N.J.S.A. provides that in addition to incarceration of a person found by the court to be in contempt of a support order issued by the Superior Court, Chancery Division, Family Part, the court may order such person to perform community service for part, or all, of the person’s period of incarceration. The most applicable case law on the matter can be found in the case of Saltzman v. Saltzman, 290 N.J. Super. 117 (App. Div. 1996). Here, the court found that the payor had the right to a hearing on the issue of his ability to pay support prior to incarceration.
In addition to the laws on criminal non-support, New Jersey courts also provide other remedies for violation of parenting time, child support, and/or alimony. When determining other remedies available for violation of either parenting time, child support or alimony, New Jersey courts will look to Rule 5:3, which discusses general provisions for family actions. Particularly, the courts will apply Rule 5:3-7, a provision that specifically provides for additional remedies on violation of orders relating to parenting time, alimony, or support.
Subsection A of Rule 5:3-7 deals with custody or parenting time orders. If a New Jersey Family Court finds that a party to the divorce proceeding has violated an order involving custody or parenting time, the following remedies, either individually or in conjunction with one another, may be ordered by the court:
- Compensatory time with the children.
- Economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent.
- Modification of transportation arrangements.
- Pick-up and return of the children in a public place.
- Counseling for the children or parents or any of them at the expense of the parent in violation of the order.
- Temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.
- Participation by the parent in violation of the order in an approved community service program.
- Incarceration, with or without work release.
- Issuance of a warrant to be executed upon the further violation of the judgment or order.
- Any other appropriate equitable remedy.
Subsection B of Rule 5:3-7 addresses alimony or child support orders. If a New Jersey Family Court finds that a party to the divorce proceeding has violated an alimony or child support order, the following remedies, either individually or in conjunction with one another, may be ordered by the court:
- Fixing the amount of arrearages and entering a judgment upon which interest accrues.
- Requiring payment of arrearages on a periodic basis.
- Suspension of an occupational license or driver’s license consistent with law.
- Economic sanctions.
- Participation by the party in violation of the order in an approved community service program.
- Incarceration, with or without work release.
- Issuance of a warrant to be executed upon the further violation of the judgment or order.
- Any other appropriate equitable remedy.
Lastly, subsection C of Rule 5:3-7 addresses enforcement of relief under provisions of domestic violence restraining orders not subject to criminal contempt. If a New Jersey Family Court finds that a party to the divorce does not comply with the provisions of a restraining order issued pursuant to the Prevention of Domestic Violence Act, not subject to criminal contempt, the court may grant the following remedies, either individually or in conjunction with one another:
- Economic sanctions.
- Incarceration with or without work release.
- Issuance of a warrant to be executed upon further violation or non-compliance with the order.
- Any appropriate remedy as specified by subsection (a) or (b), applicable to custody or parenting time issues or alimony or child support issues.
- Any other appropriate equitable remedy.