Modification of Child Support in NJ Due to Loss of Income During the COVID-19 Coronavirus Crisis

Divorced parents have a continuing legal obligation to financially support their minor children. However, since March 21, 2020, when Gov. Murphy closed all non-essential businesses in New Jersey, providing that support has become difficult for many people. Thousands of employees have lost their jobs, and there is great uncertainty about if and when those jobs will return. One can expect a flood of motions for modification of child support and the COVID-19 coronavirus serving as the basis for those requests.

Failure to keep up with support obligations has a snowball effect as the current amount owed gets added to the amount in arrears. When unpaid support becomes significant, a court may issue a warrant for the arrest of the financially delinquent parent. Among sanctions that can be imposed for failure to pay support are wage garnishment, suspension of a driver's license or other professional licenses, passport suspension and a negative mark on credit reports.

Child support amounts are primarily determined by the incomes of both parents. Even if the paying parent loses a job, the obligation to pay the court-ordered amount remains the same until changed by a court. For the court to reconsider the support amount, the parent desiring the change must file a motion to modify child support.

New Jersey law allows either parent to file a motion to modify support following a substantial change of circumstances occurring after the most recent order was entered. The changed circumstances must also be unexpected and something beyond temporary. A forced layoff following a business closure that reduces an employee's income to zero will generally fulfill the requirements of being unexpected and substantial. Whether the change will be temporary may remain to be determined.

Returning to something approaching the level of economic activity that existed before the virus struck will take time. Although federal guidelines have been issued suggesting how states may slowly open up their economies, the current lack of testing capability may significantly inhibit a quick rebound of the state economy.

Dealing with requests for modification of child support and the COVID-19 coronavirus is new territory. In the past, many judges considered the passage of 12-18 months necessary for a job loss to be considered beyond temporary. It's uncertain how judges will react when dealing with job losses resulting from the virus. These are extraordinary times, and it's possible that a shorter period of unemployment such as six months might suffice. Some employees may not have jobs to which they can return, and others may have no recourse but to accept lower-paying employment for an extended period.

When considering a request for support modification, a court examines a variety of factors including whether assets exist other than job income that could be used to meet the support obligation. This may include personal savings and retirement accounts. Judges want to see proof of the specific efforts made to obtain unemployment benefits, replacement income or a new job even at a reduced salary. Toward that goal, a person requesting modification should keep all relevant records including employment termination notices, job applications, resumes, cover letters and responses and calendars detailing daily efforts to find work.

Demonstrating a concerted effort to find the highest paying employment possible is essential because courts have the authority to impute income to an unemployed or underemployed parent. The court sets an income level for a parent based on work history, education, skills, recent salary or, at the very least, the current minimum age.

Courts take a negative view of parents who fail to make diligent efforts to find a new job following a layoff. Judges expect an employment search to include fields outside the one in which the person was recently employed. Failure to pay support while waiting for a job to open up in a preferred field is generally unacceptable. In summary, courts want to see efforts by parents to minimize the impact of a job loss on their children.

Other factors that may come into play when reviewing child support matters are the age and health of the parents, the recipient parent's need for support and the difference in salary between prior and current employment.

Most past due child support payments cannot be reduced retroactively. However, a parent seeking modification can send the other parent written notice that there has been a change of circumstances and that a formal motion to modify will be filed within 45 days. If the motion is filed with that time frame, a subsequent modification may apply to payments following the mailing date of the initial notice. If the motion is not filed within 45 days, the modification will only be allowed for payments due after the date that the motion was formally filed in court.

In this difficult time, parents must communicate and keep each other advised of their current situations. If you are unable to pay the full support amount, talk to your spouse and try to find a temporary solution. Continue to pay as much as you can. Making a good faith effort to meet your obligation will benefit your children and may also prove beneficial in court.

The approach that courts will take to motions for modification of child support and the COVID-19 coronavirus is uncertain. Although courts have generally been very strict in applying factors to modification actions, the unprecedented economic upheaval and the length of time required to recover may demand that courts view income loss very differently for some time. Child support modification cases can become very complex. Anyone considering legal action to modify support would be wise to consult an experienced family law attorney. If you have any questions about child support in NJ, call the Law Offices of Peter Van Aulen at 201-845-7400, for a consultation.