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

Will My Alimony And Child Support Be Reduced If My Ex Voluntarily Reduces Their Income?

            No.  Once a divorce is over, absent a lawyer proving in a New Jersey Family Court a true change of circumstances, a party who voluntarily changes jobs in order to lower their alimony or child support will not be successful.  Attorneys understand that these type of motions filed after the divorce is finalized are extremely fact sensitive.  However, when the payor of these financial obligations thinks they can “work the system” by such a scheme, the attorneys at our law firm thrive on giving them a rude awakening.  This recent case illuminates New Jersey law and how Court’s handle such situations.

            In Awadallah v. Awadallah, ex-husband Baha Awadallah appealed from an order of the Superior Court of New Jersey, Family Part of Hudson County dated October 31, 2014, that denied his motion to modify his alimony and child support obligations because he failed to establish the existence of valid changed circumstances. Baha had argued that had had established changed circumstances by showing that he had a new job and was now earning much less than he was when the support awards were ordered. The New Jersey Appellate Division found that defendant's decrease in income was voluntary, temporary and too recent to establish change of circumstances, and as such affirmed the order of the Family Part of Hudson County..

            In 2000, Nasrien and Baha Awadallah got married in New Jersey. However they lived in Milwaukee, Wisconsin during the marriage with their two children. During the marriage, Baha was the sole breadwinner for his family, and was employed as an assistant manager, while Nasrien was a stay at home mother. In 2013 he earned $ 40,000. Nasrien left Wisconsin with their two children in the spring of 2013, because of marital problems, and moved to her parent’s house in New Jersey.

            In August 2013 Nasrien filed for divorce. She filed a motion for pendente lite support in November 2013. Pendente lite, means pending the litigation, and is temporary support to help provide for the dependent spouse before a Family Part judge enters a final judgment for divorce with permanent child support and alimony awards. In December 2013 Baha answered the complaint, and argued that New Jersey did not have jurisdiction over him. As such, he filed a cross-motion to dismiss Nasrien’s complaint for lack of subject matter and personal jurisdiction.

            Both parties reached a divorce settlement agreement that was placed on the record on March 7, 2014. They both agreed that Nasrien would be entitled to monthly alimony in the amount of $ 695, and that the child support obligation would be determined using the New Jersey Child Support Guidelines, with Baha having an income of $ 32,800. The amount of $ 32,800 was determined using his annual income earned in 2013 of $ 40,800 minus $ 8,340 a year that he had to pay in alimony. The parent’s further agreed to stipulate that Nasrien had a yearly income of $ 23,340, which as made up of $ 15,000 in imputed income, and $ 8,340 in the alimony payments she received. Moreover, Baha consented to New Jersey jurisdiction voluntarily.

            The parents’ attorney’s drafted a comprehensive written property settlement agreement that stated that the law of New Jersey would govern the actual enforcement of the property settlement agreement. The agreement further provided that alimony would last for seven years and would start in April 2014. On March 26, 2014, the divorce was finalized.

            Nasrien filed a post judgment motion seeking enforcement of the property settlement agreement. The motion was successful and an order was entered that found Baha in violation of the property settlement agreement. He was ordered to pay child support and alimony as per the property settlement agreement, in addition to paying attorney’s fees to Nasrien for the cost of filing the motion.

            Two months after that, Baha filed a motion to modify and decrease his child support obligation, lower this alimony obligation to “$ 0”, and to change the venue. In support of his motion, Baha argued that his new job had substantially reduced his income, and that it was no longer possible for him to make alimony and child support payments. In response, Nasrien filed a cross-motion in which she sought the enforcement of the property settlement agreement. Baha was already behind $ 1,174 in child support as of the date of the cross-motion. Moreover, he had paid no alimony and owed his ex-wife $ 4,170 in alimony arrears. Baha responded to the cross-motion by asking the Family Part court to terminate the property settlement agreement because he claimed that it was not equitable or fair, and that he had actually signed it under duress. However, because he did not state this claim in his notice of motion, the Family Part judge did not consider it.

            Baha based his motion for reducing his child support and alimony obligation on the fact that he had started working at a new job in June of 2014, and that he was now only earning $ 1,800 a month during the initial trial period. He further claimed that he only earned $ 932 in income in September 2014. He stated that he was starting to do much better, and had sold nine cars this month. Baha further stressed that he was finally doing a job that he loved, and was hopeful that he would continue to do better and better with time. Moreover, he contended that he was working fifty to sixty hours a week, even though Nasrien was only working thirty hours a week and was living rent free with her family.

            The Family Part judge denied Baha’s motion to reduce child support and alimony, and found that he had only started his new job recently, so his decrease in income was merely temporary. As such the motion to modify his support obligation was filed prematurely.  The judge stated that for the Family Part to consider this matter there would need to be more definiteness. Moreover, the judge stated that Baha’s employment contract showed that his $ 1,800 a month salary was merely the minimum income he could have earned during his three month training period, which had already ended by the time of the hearing. Ultimately, the judge held that she was not able to start to reasonably define what his income truly was, and determined that the difference between the hours that the Nasrien and Baha worked every week was not a sufficient basis to establish a change of circumstances because those same circumstances had already existed when the parties had reached their property settlement agreement back in March.

            On appeal, the New Jersey Appellate Division explained that the modification of alimony is best left the discretion of a Family Part court. When someone who is a party to a mutually agreed to property settlement agreement wants to modify any part of that agreement, that person has to meet the threshold standard of changed circumstances that would make the continued enforcement of the property settlement agreement unjust, unfair, and inequitable. Furthermore, the Family Part has to determine if the change of circumstances is continuous and not just temporary. Family Part courts have consistently held modification requests that are based on temporary changed circumstances must always be rejected.

            The New Jersey Appellate Division stated that the Family Part judge was reasonable in finding that the circumstances relating to Baha’s reduced income were purely voluntary, temporary, and much too recent to establish a change of circumstances warranting modification. Furthermore, Baha had switched jobs two months after he was obligated to start paying alimony. He chose to leave a $ 40,000 a year job for a completely commission based job as a car salesman. Only four months had elapsed since he changed jobs, and he admitted himself that while he did not make very much money in September, he did a lot better in October and was expecting to make more money in the future as he progressed in his new career. Therefore, the New Jersey Appellate Division affirmed the order of the Family Part.