Most people know that a supporting spouse may be entitled to change a maintenance obligation if “changed circumstances” are demonstrated. However, many people are unaware that the “legwork” they need to do to successfully file such a request begins long before the parties ever go to court, especially when a co-supporting spouse requests discharge on the basis of an alleged basis Job loss or reduced income.
The following is a non-exhaustive list of points a judge will look for when a supportive spouse requests a reduction in maintenance obligations:
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Has the applicant demonstrated that their circumstances have changed such that they would be eligible for child benefit or a reduction in maintenance – Common scenarios that represent changed circumstances include:
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A decrease in one party’s income;
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Illness;
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Retirement;
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Receiving an inflow of cash;
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Coexistence of the supported spouse.
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It always makes sense to keep termination documents, notices to the former employer, evidence of severance pay, medical reports and records of alleged reduced income due to illness, as well as documents on assets, debts and expenses.
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If the party requesting a change has demonstrated that their changed circumstances are permanent – The lack of permanence in the sole relationships of a dependent spouse may be a sufficient basis for rejecting an application for change in assistance. The New Jersey Supreme Court ruled that a spouse’s temporary unemployment is insufficient to warrant a change in child support.
To help the court with this analysis, the supporting spouse should collect any evidence that a change is more than temporary, such as articles or other sources about a permanent decline in the person’s career choices.
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Whether the move was involuntary or voluntary – If the applicant fails to demonstrate that he or she is involuntarily underemployed, the trial judge can credit previous earnings that are obviously in line with employability. The applicant should be aware that if he quits his job or takes on a lower paying job, he is not entitled to evade his or her maintenance obligation, regardless of whether the change of job is good or bad faith. Similar principles apply if the initial job change may be involuntary but the party decides not to remedy the situation.
An example of what the court might be looking for are records that are kept when searching for a job. This will allow the court to form a reasonable basis on which to conclude that the party has taken steps to improve its situation.
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Whether the applicant has provided evidence that he or she made efforts to mitigate the perceived losses – it is not sufficient for a dependent spouse to demonstrate a decrease in income; the debtor must also explain how he tried to improve the worsened circumstances. In other words, a supporting spouse is required to find employment that does not lead to a reduction in the ability to work to the detriment of the payee’s spouse.
Some examples of what the court might be looking for are: evidence of the names of the people contacted that could help mitigate losses; the frequency of such calls; other advertised positions; potential levels of certification to improve marketability, to offset lost income, etc.
Obviously, the facts of a particular case require that an applicant produce evidence tailored to the legal assistance they are seeking. However, the above is just a glimpse of the threshold analysis – a checklist, so to speak – that a court is likely to perform before a supportive spouse ever steps foot inside the courthouse. It is therefore of the utmost importance to keep proper records in the months preceding such a request for change of assistance. Without the required evidence, your application may fail as a threshold matter.
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