Post-Judgment Modifications in New Jersey

Post-Judgment Modifications in New Jersey

A divorce is finalized when a Judgment of Divorce is entered by the Court. A majority of the time, a Judgment of Divorce incorporates an agreement made between the parties involved.

The agreement, known as a Property Settlement Agreement or a Marital Settlement Agreement, sets forth the parties’ parenting time schedule, custody arrangement, support obligations and outlines the parties’ agreement with regard to equitable distribution of the marital property.

In a minority of cases, a trial is conducted and a Judge will render a trial decision outlining findings of fact based on the testimony and evidence provided during that trial. In these situations, the trial decision will outline how property will be divided and the support arrangement.

Unlike a trial decision, settlement agreements outline the mutual agreements made by the parties on a voluntary and consensual basis. Courts look favorably upon such agreements because their consensual and voluntary nature allows divorced couples to reach accommodations, resolve their differences, and assure stability in the post-divorce relationship.

Therefore, New Jersey has a strong public policy against modifying agreements that were voluntarily entered into by the parties, especially with assistance of counsel.

As New Jersey courts favor the validity of matrimonial settlement agreements arrived at by mutual consent, such arrangements should not be unnecessarily or lightly disturbed.

Although Courts generally will not want to disturb the terms of settlement agreements, there are life events that occur that would warrant a modification. When such a situation arises, a Court has the ability to make a change to an agreement if doing so would be equitable and just. When a Court decides to modify a divorce settlement agreement, this is known as a post-judgment modification.

New Jersey Divorce Appeals Lawyers

TYPES

There are several different ways a settlement agreement can be modified by your Divorce lawyer in New Jersey. Almost all of the terms of a settlement agreement can be modified if the parties can demonstrate a “substantial change in circumstance,” detailed further below. The types of post-judgment modifications that could occur include:

  • An upward or downward modification of child support
  • An upward or downward modification of an alimony obligation
  • A change in a custody arrangement
  • A change or modification to a parenting time arrangement
  • Emancipation of a child (i.e. termination of a child support obligation)
  • Relocation application

There are also several post-judgment motions filed by Family Law Attorneys in New Jersey on behalf of parties who seek to enforce the terms of their settlement agreements with regard to parenting time, custody, child support, alimony, and unreimbursed medical expenses. (In order to properly prepare a motion for reimbursement of medical expenses, please see Understanding Child Support.) As enforcement motions do not seek to modify settlement agreements, but only to enforce the terms of agreements, these motions do not have the same burdens to overcome when making applications to the Court.

GENERAL BURDEN

In order to successfully modify terms of a settlement agreement, a party will have to show that there has been a significant and substantial change in circumstance. The original case that first used the phrase “change in circumstance,” was rendered in 1980. However, as post-judgment modifications have been heavily litigated over the past forty years, New Jersey Courts have identified a number of requirements that must be met for a change in circumstance to warrant a modification of an agreement.

First, a “change in circumstance,” cannot be temporary. Generally speaking, the time and energy that is required to file, and be successful with, a post-judgment modification is too strenuous to undertake for a temporary modification. Even if a change in circumstance drastically effects the living conditions of a party, that party would still need to prove that the change is not temporary in nature. For example, loss of employment would be a change in circumstance, but the Court would view loss of employment as a temporary change which would not warrant a modification of a support arrangement. A party will need to show that a change in circumstance is permanent or reoccurring in order for the Court to deem the change “significant.”

Not Predicted

In addition to proving that a change in circumstance is not temporary, a party will also need to demonstrate that the parties’ agreement did not discuss the specific change in circumstance that is the basis for the requested modification. Most settlement agreements will outline what is going to occur upon the happening of certain events (i.e. retirement, college graduation, etc.) If an agreement dictates how support will be modified based on the happening of a specific event, the Court will not disturb the terms of the agreement. Therefore, a party is obligated to show that their current “change in circumstance” was not discussed or provided for in their settlement agreement. If a party is able to show that the event was not predicted, then the Court may deem the change in circumstance as substantial, which would warrant the modification of a settlement agreement.

Topic Specific Burden: SUPPORT MODIFICATIONS

The most common modification agreements revolve around support arrangements, whether it be child support or spousal support. When seeking a modification of a support obligation, a party must only show that there is prima facie (true on its face) showing of a significant and specific change in circumstance. Once someone claims that there is significant change in circumstance, a Court will make an inquiry into the financial status of both of the parties involved. Most of the time, this means that a Court will require both parties to provide their tax returns and pay stubs. If these documents are provided with the application, then the Court may be able to make a determination without unnecessary delay. However, in most instances, the Court will need the other party’s documentation in order to make a determination. If the case is complex and requires an extensive overview of the current financial status of the parties, a Court may also set a discovery schedule in order for the parties to exchange their documentation.

Case Information Statements Are Required

In any application for a modification of a support obligation, a party MUST submit a current Case Information Statement and a prior Case Information Statement. A Case Information Statement outlines a party’s wages, deductions, last year’s tax returns and monthly living expenses. During the process of a divorce, a party is required to file a Case Information Statement. More often than not, when someone files a post-judgment modification application, a party will not have or cannot locate a prior filed Case Information Statement. If someone cannot locate a prior filed Case Information Statement, then it is helpful to have an experienced family law attorney assist you in trying to obtain a prior Case Information Statement as attorneys often retrieve previously filed Case Information Statements from the State.

Employment Changes

In addition to reviewing financial documentation, the Court may also need to review documents regarding employment. If a party is claiming that they have undergone a significant and substantial change in circumstance due to a change in their employment, a Court will require that party to demonstrate how and why that change in employment occurred. If a party is claiming that they are voluntarily unemployed, a party is often required to provide proof that he/she has been making a concerted effort to obtain employment (i.e. provide applications that have been submitted to employers). When a person claims that he/she is not making the same level of income as he/she did at the time of the divorce, that party will have to show that the decrease in income was not purposeful. If a party fails to show that the demotion or decrease in income is not purposeful, the Court can make a finding that the party is voluntarily underemployed. If the Court decides that someone is voluntarily underemployed, the Court will most likely deny any request for the modification of a support obligation.

Injury, Disability or Illness

There are also times where someone is not employed or not making the same level of income due to an injury, disability or illness. A Court should receive any documentation that would support the party’s contention that he/she is unable to work due to an injury, disability or illness. If someone is deemed disabled by the Social Security Administration, the Court would need the documentation that shows the disability finding. If someone is receiving worker’s compensation, sick leave or insurance payments, the Court will want to see all the documentation that shows why the person is receiving those benefits (instead of making the same income as he/she had previously).

Retirement

If a settlement agreement does not contemplate what would occur to support obligations at the time one or both parties retire, then a Court can make a modification based on a party reaching retirement age. If a party reaches full retirement age, there is a rebuttable presumption that an alimony obligation will terminate. However, there are ways to overcome this presumption, but overcoming the presumption would require an in-depth analysis by the Court. As a result, the Court may require the parties to participate in discovery so that the Court can obtain all the appropriate financial documentation. Additionally, if someone decides to retire prior to full retirement age, the court will analyze the reason behind the early retirement and whether a party is retiring in good faith. To put it simply, a Court will ensure that a party is not retiring in order to prematurely terminate their obligation to provide support to his/her former spouse.

Alimony & Cohabitation

A modification of an alimony obligation based on cohabitation is a rather complex procedure (unless the settlement agreement states otherwise). This is the type of situation where a Court would require extensive documentation and may find it necessary to set forth a discovery schedule. The reason that extensive documentation is required is because New Jersey case law sets forth seven factors that need to be assessed when making a determination on whether a supported spouse is cohabitating with another individual. These factors include intertwined finances, joint responsibility for living expenses and recognition of the relationship in the couple’s family and social circle. To make matters more complicated, a Court can find that two parties are legally cohabitating even if they are not living together on a full-time basis. As a modification of an alimony obligation based on cohabitation is extremely complex, to be successful with this type of application, it is wise to consult with an attorney who is experienced in this type of matter.

Relocation/Removal

Another complex post-judgement modification occurs when a party seeks to relocate and/or remove a child/children from the State. In New Jersey, public policy dictates that the Court will make determinations that are based on what would be in the best interest of the child or children involved. While a Court may establish a discovery schedule when a relocation/removal application is made, a Court will most often appoint an expert to evaluate the parties and the children. After a lengthy and extensive evaluation of the parties and the children, the expert will set forth his/her recommendation in a report known as “a best interest evaluation,” and submit it to the Court for review.

Custody and Parenting Time

A best interest evaluation may also be necessary when a party is making an application for a change in a custody arrangement and/or a change in a parenting time schedule. If a party is seeking minor changes to a parenting time arrangement, a Court may ask the parties to attend parenting time mediation. Alternatively, a Court may also appoint a parenting coordinator to assist the parties in reaching a resolution amicably. As previously discussed, the most important factor in making this type of determination is the best interest of the children. As with other post-judgment motions, there must be a significant change in circumstance in order for the Court to modify a parenting time arrangement or a custody arrangement that was voluntarily agreed upon by the parties.

The Court rules set forth specific guidelines regarding page limits and deadlines that must be met for a motion to be placed on a motion calendar. In order to properly comply with these guidelines, speak to a family law attorney who is experienced with the practice of filing post-judgment modification motions.

At Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, we implement our knowledge as trial lawyers, as well as our sophisticated understanding of case law.

Contact our New Jersey Divorce Attorneys to schedule a legal consultation or for more information.