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

If My New Jersey Child Support Is Constantly Not Being Paid, Will They Be Arrested?

At my New Jersey divorce law firm, one of the most frustrating questions I must address on a frequent basis is “how is he/she getting away with not paying child support every month?”  My clients are not only always asking me that question, but also seem to wonder why their ex-spouse cannot be thrown in jail for failure to pay this court ordered sum of money. As a New Jersey family attorney, while I am sure that many of my clients would like to hear that coercive incarceration is utilized to reprimand obligors for not paying child support consistently, it is a punitive tactic that is hardly used in our state. The reason being that New Jersey Family Courts commonly find that when a person owes a large sum of money in New Jersey child support, it is not because he or she does not want to pay it, rather because he or she cannot pay it. Let’s explore.

A recent case that addresses this issue is Schochet v. Schochet, Docket No. A-3601-13T2 (2014). Plaintiff Mr. Schochet was a portfolio manager of many hedge funds until the collapse in 2007. He claimed that since the collapse of the market, his income drastically was reduced and thus upon divorce he could no longer afford such a high child support payment. Initially, the divorce decree mandated that Mr. Schochet pay $1500 in alimony and $390 in child support per week to his ex-wife. Yet, as time passed the court increased the child support obligation by $50 per week.

The plaintiff could not keep up with his child support payments after the increase, as he was only earning $600 per week in salary. As a result, he was first put in jail for non-support in August 2013, which was stayed by the New Jersey Supreme Court in October 2013. At the trial court level, Mr. Schochet sought to be considered an indigent; however, the court denied this request. Instead, the court appointed Schochet counsel to represent him on the subject going forward and at the ability to pay hearing in February 2014.

Just weeks before the scheduled ability to pay hearing though, Mr. Schochet requested that an employability expert and accountant be solicited to testify as to his current ability to work and pay child support. However, the court denied this request. As a response to the denial, plaintiff Schochet submitted an application for leave to file an emergent motion so that he could appeal the court’s order denying the request for expert testimony. Yet again on appeal, the plaintiff’s request was denied.

The New Jersey Appellate Court looked to Rule 1:10-3 and stated, “this is not a plenary hearing to decide the appropriate amount of support an obligor should pay. That amount has been determined, either by the court following a trial or post-judgment motion, or by the parties themselves.” Therefore, the use of an employability expert or accountant would virtually be useless because their testimony would merely reflect an amount Schochet was able to pay. Additionally, the Appellate Division held that plaintiff Schochet failed to show that the expert testimony would be necessary to avoid the augmented risk of him being improperly thrown in jail.

While this case was definitely fact specific, it is illustrative of a situation in which a party failed to pay child support yet was not incarcerated for it. Keep in mind though that if you are in this very situation, the facts of your case might be different that incarceration will not be perceived as coercive. That is why it is imperative to consult with your New Jersey family lawyer to learn more. Thank you.