What Do I Need to Prove in Court to Modify My Support Obligation?

Nov 05, 2014

The recent case of Lax v. Lax, is one example of a situation where a party can no longer afford to pay an agreed-upon amount of support to the opposing party.  While there are a number of reasons that this could happen, including illness or loss of employment, it can be difficult to prove to a court that there has been a sufficient change in circumstances to warrant a downward modification.

In Lax, the parties were divorced for a few years when plaintiff filed a motion to modify his support obligations.  According to the parties’ Property Settlement Agreement, plaintiff agreed to pay defendant $7,000 per month in alimony and $1,735 per month in child support. In his motion for modification, plaintiff alleged that a modification was warranted due to changed circumstances and defendant’s cohabitation.

The Superior Court judge found that defendant was not cohabitating, but that there were changed circumstances because plaintiff was in the midst of filing for bankruptcy. The judge imputed an income of $115,000 to plaintiff and  $24,000 to defendant and lowered plaintiff’s alimony payment to $2,000 per month.  Plaintiff challenged this determination on two subsequent occasions where he argued that he had obtained employment at the rate of $55,000 per year and his obligation should again be modified based on these new circumstances.  These motions were both denied.

On appeal, the Appellate Division upheld the determination of the lower court finding that there was no change in circumstances sufficient to warrant a downward modification of plaintiff’s support obligation.  While under Lepis v. Lepis, 83 N.J. 139 (1980), a court may modify a child support obligation based on “changed circumstances,” the Appellate Division noted that this determination is within the discretion of trial judges.  Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006).  The Appellate Division also stated that when examining a change in circumstances, courts will look at whether there has been a change since the “most recent modification” and will not order a modification based on temporary circumstances.  Donnelly v. Donnelly, 405 N.J. Super. 117, 127-28 (App. Div. 2009).  Moreover, a party must show how he or she is attempting to improve his or her financial situation in order to justify a modification.  In this case, the Appellate Division found that plaintiff had failed to show that his $55,000 salary was only temporary or that he was attempting to change his financial situation in order to comply with the imputed income of $115,000.  

There are a variety of reasons why a party may become unable to pay a support award, but proving so in court is not always so simple.  If you need to modify your support obligations or have other support-related questions, the experienced matrimonial attorneys at Sarno da Costa D’Aniello Maceri LLC can help.  Contact us today at 973-274-5200