Once parties reach a settlement or are issued an order, in some cases they may be able to have certain agreements or orders – such as child support, alimony, and custody – modified. In this podcast on post-divorce matters in New Jersey, Michele E. D’Onofrio – a Warren divorce lawyer – outlines when a person can and cannot apply to make changes. She discusses issues that may come up after a divorce, such as positive or negative changes in one’s financial situation or the discovery that one spouse hid assets during a divorce, that can cause an increase or decrease in support and custody.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Michele E. D’Onofrio, Family Law Attorney
Michele E. D’Onofrio is a family law attorney and mediator practicing in Warren, New Jersey. She is a partner of Shimalla, Wechsler, Lepp & D’Onofrio, LLP. Michele is dedicated to representing you in the most efficient and cost-effective way and obtaining a fair resolution that will last for many years. Whether you’re going through mediation, arbitration, collaborative law, or litigation, she educates you on the legal process and how the law is applied in your specific case.
Read the Transcript of this Podcast Below.
If the Court has issued a temporary order for spousal support, child support, custody, visitation, possession of property, or payments of debts, can they be modified later?
A “temporary order” is also known as a pendente lite order. A pendente lite decision is arrived at based on written submissions called “motions” to the Court. The facts and written evidence submitted to the Court by both of the litigants along with oral argument of the attorneys for the parties are considered by the Court. This renders a temporary order that is binding until a judgment of divorce is granted. A pendente lite motion may address dissipation of assets, temporary support, custody and parenting time, discovery, and a myriad of other issues particular to the case.
Pendente lite or temporary orders can be modified prior to the final judgment of divorce if there is a change in circumstances sufficient to warrant a change in the order. Once a court renders a decision, it is expected to be honored by the parties. A party who is in violation of a court’s order may be held in violation of litigant’s rights and sanctioned. The moving party seeking a modification of support bears the burden of demonstrating changed circumstances.
Can permanent orders for spousal support, child support, custody, parenting time, property, and debt division be modified for any reason?
Not always. Settlements are deemed final. The parties each rely on knowing the terms of their settlement in order to plan their future lives. The Court will enforce its orders. The terms of an agreement are long lasting and enforceable. This is why it is very important to have experienced legal counsel represent you and guide you through the legal process.
Orders for spousal support, child support, custody, or parenting time may be modified for specific reasons based on a substantial change in circumstances. The moving party seeking a modification bears the burden of proof evidencing a substantial change in circumstances through objective and documented evidence.
When one party seeks to revisit support obligations or parenting time, they must file a motion with the Court seeking to change a provision of the agreement citing the substantial change circumstances and documenting it with objective evidentiary proofs. The adverse party will have the opportunity to respond to the motion and may file a cross motion seeking relief as well. The decision rendered by the court may include a provision for further information to be provided before a decision can be rendered, such as a discovery period to obtain financial records and information or for a child psychologist to conduct a best interest evaluation. If material issues of fact are disputed, the court may order a plenary hearing during which testimony is taken and evidence is presented before a decision is made.
If an ex-spouse who is paying spousal and/or child support experiences a substantial change in circumstances, can he or she apply to have spousal or child support reduced or even terminated?
Yes, if the payor experiences a substantial change in circumstances, he or she may apply to have his or her support obligation reduced or terminated.
There is a two-step process in determining whether modification of alimony is appropriate: (1) whether there was a prima facie showing of changed circumstances, and (2) whether the supporting spouse has the ability to pay.
When an alimony order is reviewed, the primary factors assessed to determine whether the former marital standard of living is being maintained are: the dependent spouse’s needs; that spouse’s ability to contribute to the fulfillment of those needs; and the supporting spouse’s ability to maintain the dependent spouse at the former standard. Although the supporting spouse’s current income is the primary source considered in setting the amount of the alimony award, his or her property and capital assets are also proper elements for consideration.
Child support orders may be modified upon a prima facie showing of changed circumstances as well. Once a prima facie showing of changed circumstances has been made, the Court may order the submission of the other party’s tax return and financial information, including his or her Case Information Statement.
However, a modification of a child support or spousal support obligation is not warranted if the change in circumstances is only temporary or is expected but has not yet occurred.
Can a recipient ask for the amount of spousal or child support to be increased to reflect a payor’s improved financial situation?
If the payor experiences a positive change, the payee can request an increase in child support and the child support orders may be modified upon a prima facie showing of changed circumstances. However, the purpose of spousal support is to maintain the former marital standard of living if possible; therefore, an increase in the payor’s income may not warrant an increase in his or her spousal support obligation.
The Court recognizes that children have an independent right to be supported by both parents in accordance with the parenting income and ability to pay. Therefore, the hurdle to seek a review of child support based on a change in circumstances is easier to obtain than an increase in alimony.
A motion may be made to the Court for a review of child support based on the changed circumstances. The judge or hearing officer will require the parties to disclose their financial information for the recalculation of support. A hearing officer is specially trained to calculate, enter, and enforce child support orders. A decree from a hearing office may be immediately appealed to a judge if either party is dissatisfied with the hearing officer’s ruling.
If the recipient of spousal or child support experiences a substantial negative change in circumstance, can he or she apply to have support increased?
It depends. Child support and alimony are treated differently by the courts. Alimony is unlikely to increase in terms of duration. It is critical that a party review their Marital Settlement Agreement as to the specific language utilized. Having an experienced and knowledgeable attorney in the divorce process will ensure that the language in the Marital Settlement Agreement is clear and reflective of the desires of the parties.
If the payee experiences a permanent negative change, the payee can request an increase in child and spousal support and the support orders may be modified upon a prima facie showing of substantial changed circumstances. However, if the nature of the substantial negative change in circumstances is temporary in nature, such as a job loss, the support obligation is unlikely to change. The party seeking redress bears the burden of proof and needs to prove to the Court that they are unable to obtain employment at the same income level through documentary evidence such as job applications, rejections letters, etc. The payee must show good faith and diligent efforts to regain employment at the same income level. If the basis of the negative change in circumstances is medical, they bear the burden to prove that the situation is permanent and precludes the ability to earn at the same level of income.
Can the Court change an order regarding division of property or debts after the divorce is final because of a substantial change in circumstances for one or both parties?
No, an order regarding division of property cannot be modified based on a substantial change in circumstances. Unless appealed, these orders are final.
If the court awarded primary custody to one parent, can the other parent apply to have the custody arrangement changed post-divorce? What kind of circumstances would the Court consider in making such a change?
An award of custody is subject to modification upon a showing of a substantial change of circumstances. The moving party must demonstrate that, due to a substantial change of circumstances from the time that the current custody arrangement was established, the best interests of the child would be better served by a transfer in custody.
In making an award of custody, the court shall consider but not be limited to the following factors:
- Parents’ ability to agree, communicate, and cooperate in matters relating to the child;
- Parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;
- Interaction and relationship of the child with their parents and siblings;
- History of domestic violence, if any;
- Safety of the child and the safety of either parent from physical abuse by the other parent;
- Preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;
- Needs of the child;
- Stability of the home environment offered;
- Quality and continuity of the child’s education;
- Fitness of the parents;
- Geographical proximity of the parents’ homes;
- Extent and quality of the time spent with the child prior to or subsequent to the separation;
- Parents’ employment responsibilities; and
- Age and number of children
In addition to these statutory factors, the Court must “consider and articulate why its custody decision is deemed to be in the child’s best interest.”
If one spouse discovers there has been a failure to file or amend documents (such as changing the beneficiary on life insurance policies, QDRO paperwork not submitted to the employer, or mortgage not refinanced), what can he or she do to correct these issues?
The compliant spouse may file a Motion to Enforce the Order, which requires the non-compliant spouse to file or amend documents. The non-compliant spouse will have the opportunity to respond to the Motion to Enforce the Order. The judge will rule on whether the non-compliant spouse is in violation of the litigant’s rights based on the filed pleadings as well as oral argument by the parties’ attorneys. If the Court finds a party in violation of litigant’s rights, the violator will be compelled to comply with the prior order according to the judge’s order. A Court has the ability to sanction an offending spouse in a variety of ways, including monetary sanctions, and will generally award counsel fees to the moving party seeking redress. A litigant who thumbs his or her nose at a court order repeatedly may be subject to incarceration in order for the Court to obtain compliance with its orders.
What if one ex-spouse discovered the other lied about or hid assets during divorce? Can the case be reopened and property division and support be reassessed?
Where there is evidence of fraud or misconduct by a spouse in failing to disclose the true worth of his or her assets, relief such as vacating a judgment or order may be granted under New Jersey Court Rule 4:50-1(f) if the motion is made within a reasonable time. The moving party would need to prove by documentable evidence that the assets were marital assets subject to distribution and not known to the defrauded spouse. If a moving party prevails on proving that their former spouse has hidden assets, they may seek to be made whole, which may include having the offending spouse pay legal fees and costs as well as lost interest. The offending spouse may be subject to further sanctions by the court as well. The Court does not countenance willful misdeeds by litigants and takes its role very seriously. In appropriate cases, the Court may refer the matter to the prosecutor’s office for criminal investigation.