Modification of Child Support Orders in New Jersey

Overview of New Jersey Child Support Orders

In New Jersey, both parents have an obligation to support their children, even after a divorce or separation. Child support is money that one parent pays to the other to meet the children's basic needs, like food, clothing, health care, housing, and education. For purposes of child support law in New Jersey, the "obligor" is the parent who has to pay child support, or the paying parent, and the "obligee" is the parent that receives child support, or the receiving parent. The obligee is typically the custodial parent or the parent with more custodial time.

It's important to note that while financial support may be paid to a parent, it doesn't belong to that parent. Child support is an obligation that's owed to the child, not the child's parent. The obligor simply pays child support to the custodial parent on behalf of the child.

If you're paying child support in New Jersey, then a court has likely ordered you to pay financial support for your children in an amount that was determined by the New Jersey child support guidelines, which you can review here. The guidelines establish support awards based on various factors, such as gross income.

What Is a Modification of Child Support?

A modification of child support is simply a change in the existing support order. Either parent can request a modification. If you're the paying parent, and you can't afford to pay everything you owe, or if you're the custodial parent, and you can't afford to make ends meet based on the current amount of support, you can ask a court to modify child support.

How Can I Get a Modification of Child Support in New Jersey?

A major case from the New Jersey courts sets the standard for modification of child support orders. It says that if a parent is experiencing "changed circumstances", the parent can file a motion (legal paperwork) with the court and ask the judge to grant relief by increasing or reducing the award.

The term "changed circumstances" has a specific legal meaning. The changes have to be permanent, substantial (major), and unanticipated (meaning, they weren't predicted when the current support order took effect). If your circumstances are only temporary, or if they haven't yet occurred, the court will likely deny your modification request.

If a parent wants to modify a child support order, the parent seeking the modification has the burden of proving to the judge that the changed circumstances are permanent, substantial, and unanticipated. If the parent can't prove this to the judge's satisfaction, then the other parent doesn't have to give the court current financial information.

If the judge agrees that the parent seeking the modification has proved that there are changed circumstances, then two things will happen. First, the other parent will have to supply the court with current financial information, in the form of a case information statement. Second, the judge will review all the available facts, rule on the modification request, and issue an order which takes into consideration the same factors courts must look at when making initial child support orders, including;

• the needs of the child
• the standard of living and economic circumstances of each parent
• all sources of income and assets of each parent
• the earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibilities including child care, and the length, time, and cost it would take for each parent to obtain the training or experience for appropriate employment
• the need and capacity of the child for education, including higher education
• the age and health of the child and each parent
• the income, assets, and earning ability of the child
• the responsibility of the parents for the court-ordered support of other people
• the reasonable debts and liabilities of each child and parent, and
• any other factors the court may deem relevant.

In making the decision whether to modify, the judge will be very concerned with the obligor's ability to pay. However, the judge must still consider all the other factors, too.

What Papers Should I File if I Want a Modification?

You will need to file a motion asking the court to grant your request for a modification. To that you'll need to attach a copy of the court order you want to change, a copy of a prior and current case information statement or statements, supporting affidavits (sworn statements) and briefs (legal arguments). Plan to include enough financial documentation so that the judge understands your situation.

When Are Parents Able to Get Their Child Support Modified?

There are any number of situations that could qualify as changed circumstances. Some of the more common ones are:

• there is an increase in the cost of living
• there is an increase or a decrease in the obligor's income
• a parent or child suffered a serious illness or disability after the court issued the original support award
• the obligee lost a house or apartment
• the obligee is living with another adult
• the obligee has become employed or is earning more money, or
• the federal income tax laws have changed.

What if I Retire Early?

If you plan to retire early and seek a modification to reduce your child support obligation, the court will consider four main factors:

• the benefits to the retiring parent, based on that parent's age, health, timing, finances, assets, reasons for retiring, and ability to control the disbursement of retirement payments to maintain support for the child despite retirement
• the impact on the child of reduced support, based on the child's needs, age, health, assets, and standard of living to which the child has grown accustomed, and any alleged advantages to the child from the parent's retirement
• the obligor's motivation, good faith, and whether the retirement was voluntary, and
• any other factors the judge thinks are important.

What Is a COLA?

"COLA" stands for "cost of living adjustment." New Jersey law automatically raises child support awards every two years, to make sure they're keeping pace with inflation as calculated by the Consumer Price Index.

This is one easy way to achieve a modest upward modification without having to go to court. However, the paying parent can contest a COLA if the obligor's income hasn't increased at a rate equal to the cost of inflation.

Modification Without Changed Circumstances

Note that there's an exception to the "substantial changed circumstances" requirement. Federal law requires that states have a process in place for review and, if appropriate, adjustment of child support orders every three years. The review must take place if a family is receiving TANF (Temporary Assistance for Needy Families). For parents not in the TANF program, the state isn't required to conduct a review, but it can order one if a parent specifically requests it.

In these three-year situations, parents don't need to show a substantial change in circumstances. The mere passage of at least three years is enough to trigger the review. But just because a review occurs, that doesn't mean the support figure is going to change. The presiding official will apply the child support guidelines to the parents' current financial situation. Once that's done, the official will determine whether an adjustment is warranted.