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

What If I Am Overpaying In Support While My New Jersey Divorce Is Still Pending?

Over the past 20 years as a divorce lawyer, I have often been asked by clients, “I think I am over paying while I wait for this divorce to finally end.”  During a divorce proceeding, it is common for a court to award support pendente lite. Essentially, this means that the court is granting a support award while the divorce matter is still pending. However, if one party petitions the court to have the support amount reduced during the litigation, the court will have to re-examine the original pendente lite award to determine its course of action. This was the case in the New Jersey Superior Court case of Mallamo v. Mallamo. Let’s explore.

In Mallamo, the husband filed a complaint for divorce alleging extreme cruelty as his grounds. Two children were born of the marriage and at the time of the proceeding the daughter was eleven and the son nine. The defendant wife fought for a provision to be added to the judgment of divorce so that the children would not be separated during visitation time with their father. Yet, the judgment did not contain the provision. While this was one issue presented in the case and the court affirmed unsupervised visitation between the plaintiff and his children, it was not the key issue on appeal.

Rather, the main issue on appeal regarded an oral modification of the child support amount after the second day of trial and the judge’s validation of the decrease in support in his final decision. The defendant alleged that such modification to the pendente lite child support award was a retroactive reformation of child support conflicting with N.J.S.A. 2A: 17-56.23a. Originally, the plaintiff was ordered to pay $175 per week in pendente lite child support and $50 per week in alimony. The language of the order read “either party may seek reconsideration of the $225 per week but the motion seeking reconsideration must be filed within 30 days of July 3, 1991.”

The plaintiff started to fall behind in his payments and requested to have the child support and alimony amounts lowered. The trial judge, however, denied the plaintiff’s request and set arrears as of September 27, 1991 at $1900. Additionally, another order was entered into on February 28, 1992 which fixed support arrears at $2050 and entered a judgment against the plaintiff in that amount. The order further stated that the $225 weekly support was not going to be lowered. However, the payment of the $150 per week forestalled further enforcement proceedings. With that being said, arrears were set at $5350 as of February 28, 1992 and reduced to judgment. At the hearing, the judge ordered the plaintiff to pay $100 per week in child support. The judge looked to the plaintiff’s income range over the course of approximately four years and held that he would continue to pay $100 per week in child support, with an increase to $175 weekly effective July 1, 1993.

Ultimately though the judge found that N.J.S.A. 2A: 17-56.23a did not prohibit modification of the arrears under a pendente lite order. Therefore, the judge lowered the pendente lite arrears to $5200, $50 per week effective January 1, 1994. The defendant appealed arguing that the court’s oral modification violated the prohibition of retroactive modification of child support pursuant to the statute, N.J.S.A. 2A: 17-56.23a. Importantly, the court first looked to the language of the statute, which provides in relevant part “no payment or installment of an order for child support shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days.”

Additionally, the court noted that this was a case of first impression for New Jersey and therefore it could only look to other jurisdictions that had decided the issue as persuasive. However, after looking to what the other courts had to say, the court decided that those situations were unhelpful to deciding the case at hand because each case turned on the specific wording of the statute. On appeal, the court ultimately held that the trial judge’s order to reduce child support did not constitute a retroactive modification prohibited by N.J.S.A. 2A: 17-56.23a. The court noted that the plaintiff was not responsible for showing changed circumstances had occurred to have the pendente lite child support award modified.

For more questions on modifying pendente lite support orders, please contact my office today. Thank you.