Does Voluntary Retirement Lower Child Support Payments?
New Jersey case law provides a test for determining whether voluntary retirement constitutes a change in circumstances that would justify a reduction in child support. In the 2007 case of Lissner v. Marburger, 394 N.J.Super. 393 the Court concluded that when considering a request for reduction in child support based on a voluntary retirement, the Court must examine the following factors:
- The benefits to the retiring parent, based on his or her age, health, timing, finances, assets, reasons for retiring, and whether the parent can control the disbursement of retirement payments to enable him or her to maintain support for the child despite retirement.
- The impact on the child of reduced support, based on his or her needs, age, health, assets, and standard of living to which he or she has grown accustomed, and any proffered advantages to the child from the parent’s retirement.
- The fairness of the decision, based on the obligor’s motivation, good faith, and whether the retirement was voluntary.
- Any other relevant factors. Additionally, it should be noted in this context that the obligor has the burden to justify the reduction in support that is being sought. The advantages to the retiring obligor must substantially outweigh the harm to the child in order for the reduction to be granted.
Voluntary Unemployment or Underemployment & Child Support
Sometimes, the parent ordered to pay child support may purposely make his income seem as low as possible. Often, this means that the parent may deliberately reject work promotions, or may cease to work altogether. To combat voluntary unemployment or underemployment by a spouse obligated to pay support, New Jersey courts amended child support guidelines to include the following provision: “If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent…” (NJ Court Rule 5:6A).
This provision means that courts may place further payment obligations on spouses who are deliberately unemployed or underemployed. Therefore, voluntarily avoiding more gainful employment will not reduce child support payments, but instead it may make it more difficult for one to come up with the funds to pay his or her ordered child support.
Modifying Child Support if a Spouse Loses His or Her Job
In the 1980 case of Lepsis v. Lepsis, 83 N.J. 139, the New Jersey Supreme Court ruled that changes in a spouse’s occupational income may constitute changed circumstances, thereby modifying child support payments. These rules also apply if the spouse loses a job, or is forced to settle for a lower-paying job.
However, a modification of support must be based on a showing that loss of the initial job did not occur as a result of the spouse’s bad faith or deliberate conduct. Simply put, a spouse cannot quit his or her job, then seek to lower his or her child support obligations.
How Can a Spouse Prove that the Unemployment is Voluntary?
If a spouse believes that the child’s other parent is without good reason for his or her unemployment or underemployment, they may seek to prove so by introducing evidence before the Family Court judge. For example, it can be established by showing that, after separation, the spouse voluntarily quit a high paying job to seek a lower paying job, the spouse avoided opportunities to advance at his or her place of employment, or the spouse avoided seeking bonuses or additional payments that were available.
The accused spouse may present evidence to prove that the lack of employment is not deliberate, including termination notices, employment applications, job appointments or pending interviews.
Does a Higher Paying Job Mean an Increase in Child Support?
If a party has experienced “changed circumstances” following a divorce, the opposing spouse may file a motion with the court for a modification of child support. This modification may be an increase, or a decrease. In the Lepsis case the New Jersey Supreme Court ruled that child support payments may be modified in light of changed circumstances, which also include obtaining a higher-paying job. Therefore, if the non-custodial spouse obtains a higher paying job, support payments may increase as a result.
If a Spouse Remarries, May Child Support Obligations be Modified?
Normally, the remarriage of the obligor spouse will not affect support obligations. New Jersey courts have ruled that remarriage does not constitute changed circumstances. However, it is possible that a child resulting out of the new marriage may be listed as an “other dependant deduction” of the paying spouse, thereby reducing his or her support obligations.
Call Villani & DeLuca with Child Support Questions
At Villani & DeLuca, P.C., we routinely address child support modification issues throughout central New Jersey including, but not limited to, the Family Courts of the Superior Court of New Jersey in Middlesex County, Monmouth County, and Ocean County. Should you have any questions relative to your current child support obligation, please contact the Law Offices of Villani & DeLuca for a free consultation at (732) 965-3350.
