Attorney Brad Micklin discusses what to know before filing a child or spousal support modification.
An alimony order may need to be modified if your income changes so much that it’s unreasonable to expect you to continue making the payments that you originally agreed to or ordered to pay. The following are some things you need to know before filing a request for modification.
Now, a general rule for calculating or recalculating child support is by using an estimate of 20% to 30% of your net pay depending on how many children are involved. However, that’s just a rough guideline. New Jersey and most other states have a child support guideline that is much more complicated than I’m setting out to be. I’m just giving you a rough idea so that you can base it, but the guideline itself will calculate support based on the combined incomes overnight parenting schedule, any kind of extraordinary medical expenses, healthcare, and some other issues.
So, to file for modification, you’re going to need to show that your income changed significantly since the last support order was issued, which might be difficult. Significant income changes may affect support, including loss of employment, illness or injury that prevent you from working, increases in your income, and the addition of another child to your household. In your motion, you don’t have to show the income from all available sources, which is not just your job. But if you have any support that you’re receiving, if you have investment income, interest, income, things like that will also be counted. And you’ll need to show this dropped at least by 15 percent, if not more, in the past three months. And then it’s expected to drop by at least 15 percent in the future and remain there for a long period of time, if not indefinitely.
Also, gaining a higher paying position may be a reason to modify support if you are on the receiving end of the support. So if you’re the recipient and your ex-partner or the parent you find has increased his or her income by the same 15 or 20 percent, that may also be a reason for you to seek an upward modification of support. Changes in parenting time, whether they increase or decrease, can impact child support. As I indicated, it is one of the criteria that are utilized in the child support guidelines, but it doesn’t mean it’s just one day change or a few days’ change. It’s usually if you have a significant overnight extended parenting time, like a big summer break, a month during summer, maybe a couple school vacations. And I say that because the child support guidelines do not stop child support if you have the child for an extended period of time, like a month or two in the summer. So it may be reasons to change support based on your parenting time, even if it’s a temporary change.
Additional reasons to modify support can be health issues of either the parent or the child. The health issues have to be something that impacts your ability to work when it’s a child’s issues. It has to be something that usually would require expensive medical treatments and expensive changes in your family situation, such as a disability, a significant medical expense, the birth of another child, additional children for the child to support, and any other significant changes in the expense of the family.
Now let’s take a look at some of the logistics of filing for a child support and alimony modification. So here, we’re going to discuss how to file, timelines for filing, and the necessary court appearances you can expect when you file for modification.
The modification can affect your visitation, so it can be considered as a possible factor for modifying custody and parenting time arrangements. So it’s important to know how to file modification of child support in New Jersey. Simply put, New Jersey courts follow the statute of NJSA 2a: 17 – 56.39a, which states that there must be a written agreement or court order for modification to take place.
In addition, modifications of child support in New Jersey should be done so that it doesn’t cause any harm to the other parent or the children involved. Modification of support, especially child support in New Jersey, is important because it can improve your life while trying to keep the best interest of your children in mind. Keeping in mind that there are some limitations on how modifications get filed and the amount of modification you get, the material that’s going to follow is intended to help give you some of the basis to move forward.
Now, how to file. If you’re considering to modify your child or alimony obligations, there are certain documents you need to submit with your motion in order to prove that a change is warranted. We’re going to outline what those documents are and provide some tips on putting together a strong case. Keep in mind, modifying child support can be a complex process, so follow these steps and information carefully.
First you have to file a motion or application with the court. These documents must be filed in the original court that issued the judgment, or the consent order if you did this by agreement. If you got child support through a divorce, you’ll have what’s called an FM Docket number – that’s family and marriage docket – that’ll be the first two letters of your case number and must be included in the paperwork you file. Non-dissolution is anything other than a married couple that have children or a support obligation; that will have an FD docket number. That’s F for family and D actually stands for non dissolution.
The documents have to be served on the other party. Now, the best and safest way to do that is to send them by certified mail return receipt requested and by regular mail. The reason is the court will say, if you send the papers to the other party, certified mail return receipt requested and regular mail, and the certified mail is not acknowledged or signed, but the regular mail is not returned to you, then the court will consider that the other person received the papers. There are other, less formal options that are usually best if there’s an attorney on the other side, or if you have cooperation and you can trust the other party. When there’s an attorney on the other side you may use regular mail and more commonly email. But if you’re going to send it over by email, especially if it’s to a non-attorney, have them confirm that they did in fact receive it.
If you’re requesting modification, there’s going to be certain forms that you need. The first is a notice of motion. Notice of motion has certain requirements. If you get the form, it’s largely fill in the blank, indicating that you’re looking to modify your support obligations and how much you’re looking to modify. Then there’s certification of mailing, which will indicate that you did send a copy by certified regular mail or email. Next is notice to litigants. Then there’s the certification from you, assuming you’re the one seeking the modification. In the certification you obviously have set forth the reasons why you need to modify your support obligations, as well as what led to the support allegations. You should put several things that will help the court decide how it was decided originally and whether it should be modified. And that would include the original order of support, something called a case information statement.
If you filled a case information at the time that your support was entered, you want the original one, and then anything else that supports the current needs and lifestyle that you have as well as the change of circumstances that you’re experiencing. The proposed former order, again, it’s going to mirror the information you put in the notice of motion, but it’s going to be a slightly different form. Again, if you’re not going to have an attorney, find an online form, make sure that it’s specific to New Jersey. Although the courts will be a little flexible if you’re representing yourself, if the form’s accurate but not perfect or identical, they will still likely accept it. But don’t take that risk if you don’t need to. And then the letter brief, that’s not something that you’re likely to be able to find online and it’s not always necessary to modify support, but it’s recommended. So, if you can, you should find a way to get a letter brief, which is just outlining what the law says for the reasons to support modification and including the facts of your case and showing why they mirror one another lending to asking the court to modify your support.
Next we’ll talk a little bit about filing a modification in an FD case, which is not a divorce case. So first let’s talk a little bit about the documents that are necessary, because they’re significantly different. These can all be found online or through the courts directly because they created these forms so that there’d be uniform filing with people who often don’t have lawyers. So they made standardized forms. So you’ll need the application for modification, form number 11487, the order, which is what you’re seeking for them to enter, a confidential litigants information statement, and any supporting documents.
You’re not likely to have a case information statement. Instead you’ll have a financial statement of summary support. Now this is similar to your case information statement in that it’s presenting your financial information, but it’s not identical in the form. So do not use a case information statement in an FD Case, you need to use the financial statement of summary support – form 11223.
You want to attach your income information. This will also go for divorce filings and then for non-filing. You want to put your three last pay stubs, your most recent tax return, and your most recent W-2s or 1099s along with any other information that supports your change of circumstances. And there’s a $25 filing fee for an FD case.
If you’re considering modifying your support, you want to know how long the process will take. Now, in most cases, it will take several months to get a modification finalized. Keep in mind that every judge in every county may have a different process for scheduling their hearings. There’s a uniform process in New Jersey where the same judge gets the case back post-judgment. They’re supposed to be on alternating Friday hearing dates, but with COVID and recent changes with electronic filing and the backlog that has been caused by it, some counties are implementing different processes that other counties are. So you need to know that the timing may vary. I would recommend speaking to an attorney in your county before you go into this process. That being said, let’s take a look at the initial scheduling timeframes.
So in an FM matter, the notice of motion has to be served 24 days before before it’s supposed to be heard, which the notice of motion form asks you to pick that day. So it’s an alternating Friday schedule 24 days from the date the court gets it. Whether you pick the right or wrong date, the court will put the correct date on it and send it back to you. So try to calculate right, but don’t get hung up on that so much.
The notice of cross motion, if you’re receiving an application to modify support, you have to file cross motion within 15 days of the return date, not 15 days from your receipt of it. So again, find out what the court’s scheduled for and calculate 15 days back. There’s a court rule that talks about what days you do and don’t count for calculation. It can be a little tricky. So you might want to read up on that or talk to the lawyer. And then if you’re responding to a cross motion, if you filed the original application, then you have eight days from there to file a response.
So in an FD matter, the non-moving party does not have to file a response, which means if you are filing for modification, the other person doesn’t need to file anything before the hearing date, but they can. The moving party has to file and serve it 16 days before the hearing date, which the court’s going to schedule. It’s just so that you know how long these things are going to take.
Now let’s talk about the different types of hearings that you may encounter in a modification process. First is oral argument. That’s when you and the other party appear in court and you stand before the court and argue about what’s in your papers. Basically you’re limited to what you put in your papers. I truthfully don’t really understand the point of oral argument unless the judge has specific questions for you, but that’s usually not the case.
That’s generally going to be required – we’ll talk about that in a second when we talk about a plenary hearing – but more often than not, the courts will have oral arguments just to avoid errors on the record and appeals. They can decide the motion on the papers. I think that they should do it more often than they do. They will tell you usually that that’s going to be the case. You can also call three, four days before the scheduled date to make sure that there is oral argument or whether your motion is on the papers. Some courts provide a tentative decision, which is a written decision a couple days before the hearing telling you what they’re going to decide, then giving you the opportunity to argue in court or not. I generally don’t think it’s helpful to argue in court after you’ve received decisions. It’s unlikely that you’re going to change the court’s decision. As an attorney I will usually take the argument if I don’t think the cost will outweigh the benefit, because it’s good to keep a clean record. And sometimes you can clarify some errors that the court may be making in its decision. Otherwise, it’s very hard to change a judge’s decision.
Plenar hearings, that’s a short but complete trial. Sometimes when modifying support, the court will require a plenary. And that is when the paperwork that you and the other person file conflict with one another and the court doesn’t have enough information to make a final decision. They will usually schedule a discovery period, which will be the exchange of information: tax returns, credit card statements, bank statements, agreements, and depositions. I consider plenaries like a mini divorce.
You will have examination and cross examination at this plenary hearing. Again, the topic is very complex so I won’t go into it, but I do have a webinar on my YouTube page about how to conduct both cross and direct examination. And then the judge will make a ruling, sometimes at the hearing but most often afterwards, and usually in writing because there’s always a lot of information to process. Additional court appearances and case management conferences, that’s a scheduling conference the court will hold every few months inside of most litigations, including a support modification. And it’s really to find out what has been completed, what remains outstanding, and what needs to be done before we can have the actual plenary trial that concludes the application. You’ll have mediation; usually the court will schedule several forms of mediation. That is where you and the other person meet with an attorney or a judge or somebody you hire in a confidential process with the hopes of making an agreement. If you come to an agreement it’s binding once signed, and if you don’t agree, then you just continue back to court. Again, I have several videos on mediation, as well as arbitration, a slightly different type of process, that would be helpful for you to review so you can understand this.
A mediator will be a neutral third party. It can be really anybody that you two agree on. Commonly it’s a lawyer or judge, as I mentioned, but sometimes it can be mental health experts if there are custody issues that are involved. It can also be a financial advisor or really anybody that the two of you agree to.
If you’re going to find yourself before a judge, whether it’s an oral argument or in, um, a trial, just remember a few key things, always be respectful, speak clearly, and answer any of the questions that are asked of you. Judges get really frustrated when they ask a simple question and people are very defensive or they’re in their heads, trying to think of what it means and just not answering it. Judges aren’t out to get you or to hurt you. They’re there to help gently. So they will appreciate it when somebody is honest and respectful and just answers their questions.
When you go to court, the outcome of your case will obviously depend on what the judge decides. Judges have a lot of power in the courtroom, and they make a decision that will impact your life in a number of ways. So let’s take a look at some of the factors that play into judicial decision making.
When child support is ordered and alimony is ordered or modified by a judge, it’s typically based on your income and ability to pay. However, there are situations in which a judge may determine it’s appropriate to modify support either by increasing or decreasing the amount. So there are going to be several factors to consider when they’re making this determination, but primarily a substantial and material change of circumstances. Now, the problem here is that it’s not defined clearly in the law. It could be, like I said, earlier 15 or 20%, or it could be 10%. It could be a 50% decrease, but it’s your burden of proof to establish that your circumstances have changed substantially.
It’s gotta be permanent and involuntary, meaning you can’t leave your job to modify your support. It also can’t be that you’ve been out of work for a couple weeks and you just want to modify your support. You have to be able to show that it’s going to be several months since you’ve lost your job and that you’ve been unsuccessful finding another job, and that it’s likely to be long term, if not permanent.
Now, calculating child support has many criteria: needs of the child, standard of living and economic circumstances, all of your income and assets, your earning ability, the needs and capacity of the children including education, health and age of the children and parents, income assets available, responsibility for support of other dependants, debts and liabilities, and then any other fact that the court deems relevant, which again is something that has no definition, but something to keep in mind if you have an unusual case.
With alimony, it’s also called spousal support, the payment from one spouse to another, either on a regular or non-regular basis. Judges have discretion in determining the amount of alimony to award each party. The factors that can be considered when determining the amount and duration of alimony include the following: the needs and ability of the parties to pay, length of the marriage, age of the parties, standard of living during your marriage, earning capacities and skill levels, employability and absence from the job market, parental responsibilities, time and expense necessary for acquisition of education, history of financial and nonfinancial contributions to the marriage, equitable distribution of property and profits, income available through investments and other assets, tax treatment and consequences of the alimony, length of temporary support, and any other factors the court deems relevant.
You may be aware that alimony has been updated. The alimony statute was updated in 2014, which is a step forward for those that wanted more fairness when it comes to determining how much money they would receive or pay once their marriage ends, or when one spouse earns significantly less than the other over time. Because without the change in the statute, many people felt like there was no legal standard at all. So a law was passed which reformed the alimony statute so that the guidelines are much more rigid.
In 2014 they tried to codify how terms were determining alimony to what they thought was fair, but making more specific determinations to avoid an informal practice that judges were using. So one major change was how to determine alimony for a non self-employed party. First, the loss of income will be a criteria. Also your efforts to get employment afterwards at a comparable level, how significant the income circumstances have changed, efforts to obtain employment since you’ve lost the job, impact of your health and other abilities to obtain employment, severance or compensation you received when you lost your job, any changes in your financial circumstances, the reasons for the change in these financial circumstances, and whether temporary remedies should be involved. They can modify support temporarily. They can also modify enforcement, but not change the numbers. The courts have a lot of remedies available if they don’t believe it’s permanent but they want to give some kind of temporary relief. And again, any other factors the court deems relevant.
Now to determine alimony with self-employed parties, with involuntary reduction in income, which is one of the newer, more in-depth areas of the modification of the alimony statute, must include analysis of your perk or your benefits: phone, car, payments, entertainment, credit cards, reimbursements, things like that. Because in a nutshell, they realize that many self-employed individuals receive income that doesn’t show up on a tax return, economic and non-economic. So you’re going to have to set forth receipts, vacation time, and things like that. So your application for relief has to ensure your economic and noneconomic. It’s very important that as a self-employed individual, that you either submit or be prepared to submit not only your tax returns, but your business and personal bank statements, QuickBook, ledgers, and that you have anything that shows the cash flow, because the general belief is going to be that if you’re self employed, you are receiving perks.