Q. I pay child support and want to leave New Jersey to be closer to my children. If I get a new job in a similar field to be closer to family, and my ex-spouse works more than she did at the time of the divorce – she worked part-time, no income was counted – and now works full-time, what then? happens? My ex-spouse increased his income by working full time and I earn the same. So can I get a downward correction? What happens if I earn less?
– Divorced
A. It's nice to hear that you want to be closer to your children.
Any time a family court judge is asked to rule on a request to modify a maintenance award, be it alimony or child support, it will be very fact sensitive.
The person filing must first meet their burden of proving that a “permanent, significant change in circumstances” has occurred, said Kenneth White, a certified matrimonial attorney at Shane and White in Edison.
“Once that initial burden is met, the judge will then analyze the specific facts and consider whether the duty of support should be modified,” White said. “If there are no clear, undisputed facts, the judge may allow a period of disclosure – the exchange of information and documents – and require a full hearing, similar to a trial, before making a decision.”
White said there are no clear rules as to what qualifies as a material, permanent change in financial circumstances.
A 5 percent change in annual income, up or down, would generally not be considered a significant, permanent change, while a 20 percent or more change would certainly qualify, he said.
If your ex-wife's income has increased significantly since your alimony was first assessed, and that increase was not reflected in the terms of your prenuptial agreement or the judge's decision as expected, you may well be entitled to a downward modification of your alimony obligation, White said.
Specifically, you may find that circumstances have changed significantly and permanently, and then the analysis will shift to whether your ex's increased annual income has reduced her support needs to the same extent as previously established, he said.
A judge cannot tie someone to a particular employer, and you are free to change jobs and move out of state at any time, White said. The question will be whether it is appropriate for the judge to accept your lower annual income at this new job, possibly out of state, as correct income for a future analysis of your support obligation, or whether the judge will count the income based on you on your earnings history,” White said.
There is no black and white answer here because it is very fact sensitive and different judges could most likely come to different conclusions, White said.
White said the primary question will be whether you made a good faith effort to find comparable employment in the same field at the best annual income available.
“If a judge found that about you, he/she probably wouldn't give you a higher wage,” White said. “If the judge determines that you could earn more without your voluntary change in employment, the judge could award you a higher annual income based on your earnings history when analyzing whether your support obligation should be changed.”
Consider speaking with an experienced matrimonial attorney who can help you review the details 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.
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