Child Support in Cases of Underemployment or Unemployment

1. I am paying $300 per week in child support for my two children. However, I just lost my job. Can I now go back to court and ask that my child support be reduced?

The family courts are swamped with motions to reduce child support or alimony based on the grounds that a spouse has lost a high-paying job. Moreover, in many divorce cases, a key issue is whether a spouse is underemployed. Some non-custodial parents believe that working hard is fruitless, because all of their money is going to be garnished anyway.

In these situations, you can certainly file a Lepis motion to seek a reduction of in your child support obligation. However, you will have to submit a very well-prepared and detailed motion. Any person who is filing a motion to reduce child support based on the grounds of unemployment or underemployment should retain copies of termination notices, severance letters, cover letters seeking employment, lists of appointments and interviews, job searches, and a calendar of daily efforts made to find a suitable job. Moreover, one should keep an ex-spouse apprised of efforts to find another job.

In my experience, most judges are now granting many Lepis applications based on the grounds of unemployment or underemployment. However, most judges will only grant the applicant a temporary reduction in child support and will review the parties’ financial situation again in six months. Moreover, the court will want to review the unemployed/underemployed spouse’s efforts to find suitable employment. In theory this is an excellent idea.

All parents should have a strong incentive to keep searching for a decent-paying job to support their children. However, this type of order leaves the case open, and many New Jersey families are forced to live in a state of perpetual Lepis litigation. The happy family life as illustrated in the Brady Bunch has been replaced by ex-husbands and wives constantly litigating with each other over Lepis motions, college contribution motions, and applications to terminate alimony. Has life really gotten better since the 70’s? I don’t think so!

2. My wife and I are getting divorced. My wife refuses to hit the pavement and find a decent job. Will the court impute any income to her when it determines a child support award?

This issue is frequently raised. However, most husbands are fighting a losing battle. In most scenarios where a wife is a stay-at-home mom, the court will only impute an insubstantial amount of income to her. Instead of trying to impute income, your better course of action is to insist on inserting language into the property settlement agreement (PSA) providing that the issues of child support and alimony will be automatically revisited once the children reach a certain age. Moreover, the payor spouse can insist on language in the PSA that provides that the recalculation of family support shall be automatic and not subject to the progeny of Lepis cases.

3. I am a divorced father of two girls. I am also a successful lawyer and earn a six-figure salary. However, I can no longer stand being a lawyer, and I want to go into the teaching field. What are my chances of getting my $400 per week child support obligation reduced if I change fields?

This is an issue that is frequently litigated in the family courts. A person has a right to pursue work that he or she enjoys. You should not have to work in a field that you hate. However, your freedom of choice as to how to live your life is counterbalanced by the Child Support Guidelines. The Child Support Guidelines, Appendix IX-A, specifically provides that a person can have income imputed to him if he is found to be voluntarily underemployed.

The seminal case on this issue is Lynn v. Lynn, 165 N.J. Super. 328 (App. Div. 1979). Here, the court looked beyond the husband’s reduced earnings to determine his child support amount. The court made this decision even though it held that Dr. Lynn made a career change in good faith, not in an attempt to avoid paying child support. In this case, Dr. Lynn made a major decision to change medical careers from oncology to psychiatry; however, this change would require three years until he could return to the practice of medicine. The court accepted Dr. Lynn’s position of wanting to make a career change. However, the court still refused to reduce his child support payments, as it reasoned that Dr. Lynn still had significant savings to enable him to pay child support.

In summary, an application to reduce child support would probably be “shot down,” as applications to reduce child support if the lost income is voluntary are very carefully scrutinized. Judges simply do not like to “take food out of the children’s mouths.” Most judges believe that the child support guideline amounts are low. Thus, there is an inherent bias in the courts to be very reluctant to reduce those amounts. The only way to be successful with such a motion is to provide strong evidence that your mental health would be harmed if you remain in your profession. Moreover, you will have to provide proof that in the long run your newfound field of employment will enable you to better provide for your family.