Q. I am paying alimony and I want to move out of New Jersey to be closer to my children. If I get a new job in a similar field to be closer to the family and my ex-wife works more than she did at the time of the divorce – she worked part time, no income counted – and now works full time, what? happens? My ex-spouse improved their income by working full time and I earn the same. So can I get a downgrade? What if i earn less?
A. It’s nice to hear that you want to be closer to your children.
Every time a judge at the family court is asked to rule on an application to change a maintenance claim, be it maintenance or child support, it is very sensitive.
The person making the request must first meet their onus to prove that there has been a “permanent, material change in circumstances,” said Kenneth White, a certified marriage lawyer with Shane and White in Edison.
“When that initial burden is met, the judge will then analyze the specific facts and consider whether to change the support obligation,” said White. “In the absence of clear, undisputed facts, the judge can set a deadline for the investigation – the exchange of information and documents – as well as a hearing in the plenary, similar to a trial, before a decision is made.”
White said there are no clear rules about what qualifies as a significant, permanent change in financial circumstances.
A 5% change in annual income, up or down, generally wouldn’t count as a significant, permanent change, while a change of more than 20 percent might very well qualify, he said.
If your ex-wife’s income has increased significantly since your maintenance was first established and that increase was not accounted for as expected under your prenuptial agreement or the judge’s decision, that increase may very well entitle you to change your maintenance obligation downward, White said .
Specifically, you can see that circumstances have changed significantly and permanently, and then the analysis will shift to whether your ex’s increased annual income has reduced their maintenance needs by the same amount as before, he said.
A judge cannot tie anyone to a particular employer, and you are always free to change jobs as well as move out of state, White said. The question will be whether it is appropriate for the judge to accept your lower annual income in this new job, possibly abroad, as the correct income for a future analysis of your maintenance obligation, or whether the judge will credit the income based on you on your merit history, said White.
There is no black and white answer here as this is very sensitive and different judges are very likely to come to different conclusions, White said.
White said the primary investigation will be whether you have made good faith efforts to find comparable employment in the same field with the best annual income available.
“If a judge finds you have one, they are unlikely to charge you a higher wage,” White said. “If the judge determines that you could earn more without your voluntary change of job, the judge could assume a higher annual income based on your earnings history as part of an analysis of whether your maintenance obligation should be changed.”
Consider speaking to an experienced marriage law attorney who can help review the specifics of your case.
Email your questions to Ask@NJMoneyHelp.com.
Karin Price Mueller writes the Bamboozled column for NJ Advance Media and is the founder of NJMoneyHelp.com. Follow NJMoneyHelp on Twitter @NJMoneyHelp. Find NJMoneyHelp on Facebook. Sign up for NJMoneyHelp.com’s weekly e-newsletter.