Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How May I Have My New Jersey Divorce Agreement Changed By The Family Court?

As I New Jersey Divorce Attorney, I have been asked this question more times than I could possibly recall.  However, the answer is almost always the same.   First, I explain that procedurally we would have to file a post judgment motion to have the matter addressed by New Jersey Family Court.  Then, I explain that before a court will grant a modification to a court order, or final judgment of divorce, the party seeking modification must establish a substantial change in circumstances that renders the enforceability of the original order, agreement, or judgment to be inequitable. 

It is very tough to set a requirement for the amount of proof necessary for a court to grant a modification. This is true because each family and their respective set of facts is distinguishable. Yet, in certain circumstances, general factors like cost of living, employment status, inflation, and illness or disability may prompt a court to grant a modification. Furthermore, cohabitation is sometimes considered an acceptable changed circumstance that warrants alimony modification. This is the case if one cohabitant supports the other cohabitant, which results in a change in the economic status of the payee. Moreover, for courts to consider permitting a modification to a support order or alimony award, the changed circumstances must be long term, not transitory circumstances.  

The most influential case law on the topic of changed circumstances in New Jersey came about in 1980. This NJ Supreme Court case, Lepis v. Lepis, 83 N.J. 139 (1980) laid the framework for deciding modification cases, particularly relating to alimony and support orders or agreements. The court held that such agreements are subject to modification. Additionally, the court claimed that if a prima facie showing of changed circumstances is made, it has the ability to order discovery of the payor’s financial status. Furthermore, if a party is seeking modification of an alimony award, that party carries the burden to demonstrate an inability to support them self, which then requires discovery of the dependent spouse’s financial status. Once the discovery phase is thoroughly completed, the court will decided if holding a plenary hearing is necessary or not. However, it is important to note that often times, motions for modification are heard by a court without more discovery.

Another important case decided years later in New Jersey was Storey v. Storey, 373 N.J. Super. 464 (App. Div. 2004). The court laid out the following set of factors relevant to the reasonableness and relative advantages of a career change, for the purposes of modifying alimony: (1) the reasons for the career change; (2) disparity between prior and present earnings; (3) efforts to find work at comparable pay; (4) the extent to which the new career draws or builds upon education, skills, and experience; (5) the availability of work; (6) the extent to which the new career offers opportunities for enhanced earnings in the future; (7) age and health; and (8) the former spouse’s need for support.  

A post-judgment motion for modification

These types of motions must be filed 24 days before the time specified for the return date. Any and all cross-motions must be filed 15 days before the return date. Furthermore, any and all answers to cross-motions must be filed not later than 8 days before the return date.

Moreover, it is imperative that motions for modification contain a notice to the obligor that any future support orders shall be enforced by income withholding upon the current or future income due from the obligor’s employer and upon the unemployment compensation benefits due to the obligor. The corresponding provision of the New Jersey Statutes Annotated is 2A: 17-56.8.

Every complaint, notice or pleading for the entry or modification of a support order and every court order which includes child support shall include a written notice to the obligor stating that the child support provision of the order shall, and the health care coverage provision may, as appropriate, be enforced by an income withholding upon the current or future income due from the obligor's employer or successor employers and upon the unemployment compensation benefits due the obligor and against debts, income, trust funds, profits or income from any other source due the obligor except as provided in section 3 of P.L.1981, c.417 (C.2A:17-56.9). The written notice shall also state that the driver's license and professional or occupational licenses, or recreational or sporting license in accordance with P.L.1996, c.7 (C.2A:17-56.41 et seq.)held or applied for by the obligor may be denied, suspended or revoked if: the child support arrearage is equal to or exceeds the amount of child support payable for six months; the obligor fails to provide health care coverage for the children as ordered by the court for six months; or the obligor fails to respond to a subpoena relating to a paternity or child support proceeding; or a warrant for the obligor's arrest has been issued by the court due to failure to pay child support as ordered, failure to appear at a hearing to establish paternity or child support, or failure to appear at a hearing to enforce a child support order and said warrant remains outstanding. The written notice shall also state that the amount of a child support order and the provisions for health care coverage may be reviewed and updated when there has been a change in circumstances or in accordance with section 5 of P.L.1990, c.92 (C.2A:17-56.9a).

The court shall ensure that in the case of each obligor against whom a support order is or has been issued or modified, the obligor's income shall be withheld to comply with the order. An amount shall be withheld to pay the support obligation and it shall include an amount to be applied toward liquidation of arrearages reduced to judgments, payments for paternity testing procedures and provisions for health care coverage when applicable. These provisions shall also be applicable to all orders issued on or before the effective date of P.L.1985, c.278 (C.2A:17-56.16 et seq.).

A support provision contained in an order or judgment issued by the court shall be paid by income withholding unless the order or judgment specifically provides for an alternative payment arrangement to which the parties agree in writing or the obligor or obligee demonstrates and the court finds good cause for establishing an alternative arrangement.

Another important aspect of changed circumstances relates to child support orders. In New Jersey, a child support order cannot be retroactively modified. The statute, N.J.S.A. 2A: 17-56.23(a), allows written notice to the obligor that modification is sought. If the negotiations are unsuccessful, the modification will be retroactive to the date that the notice was sent or to the date that the motion was filed if the notice to the obligor was not previously sent. However, even though this statute bars retroactive modification of child support arrears, it does not bar the retroactive termination of a support order based on emancipation.