Modification of Support due to Unemployment

By Peter Van Aulen, Esq.

I have received many phone calls during my years of practice when a client states that he or she lost a job and asks if child support or alimony obligations can be terminated or modified. My answer is that it depends. The Court in Lepis v. Lepis, 83 N.J. 139, 151 (1980) held that an increase or decrease of the payor spouse’s income could be found as a substantial change of circumstance that would warrant a modification of his or her support obligation. However, the Court in Gertcher v. Gertcher, 262 N.J. Super. 176, 177 (Ch. Div. 1992) held that temporary unemployment is not grounds for a modification of a support obligation. The rational for said holding was that it was not a paying spouse’s employment that was significant, but the paying spouse’s “immediate past ability” to earn a certain income and to procure employment that would produce an income to fulfill his or her support obligation that the court must assess. Id. Also, the Court in Arribi v. Arribi, 186 N.J. Super 116 (Ch.Div.1982) held that a payor spouse may not decide to accept employment only in his or her preferred field after becoming unemployed and thereby remain unable to pay his or her child support obligation. The Court in Arribi stressed that they were not reprimanding the defendant for losing his job, but stated that an “apparently able-bodied defendant” cannot sit back and not support his child while he “somewhat complacently” waits for employment in his field. Id.

While the holding in Arribi stands for the premise you can not remain unemployed and complacently wait for employment in your field, the holding in the case Story v. Story, 373 N.J. Super 464 (App. Div.2004) stands for the premise that the courts will evaluate a payor spouse’s career change by determining the reasonableness and the relative advantages of said career change under the totality of circumstances. The court in Story held that the following factors are relevant to determining the reasonableness and relative advantages of a payor spouse’s career change:

• The reason behind the career change which include the reason for leaving the prior job and the reason for choosing the new employment;
• The disparity between the payor spouse’s prior and present earnings;
• The payor spouse’s efforts to find work at comparable pay;
• The extent to which the new carrier draws or builds upon the payor spouse’s education, skills and experience;
• The extent the new career offers opportunities for future increased earnings;
• The age and health of the parties;
• The former spouse’s need for support

The Court in Storey held that the new career choice of a computer hardware specialist who made $111,000 per year when he lost his job due to company cutbacks, but decided a month later to become a massage therapist which only paid $300.00 per week, was not reasonable, and the advantages to him did not substantially outweigh the disadvantages to his former wife. Consequently, the court denied the motion to modify his alimony obligation. Another court decision that has an impact on determining if a payor spouse’s unemployment results in a modification of his or her support obligation is the case of Piscitelli v. Piscitelli, 408 N.J.Super.83 (app.Div.2009) which held that family courts could take judicial notice of the poor performing economy and employment market in deciding if unemployment amounts to a change in circumstance. The main message to be derived from looking at all of the above cases together is that one must be able to present evidence that he or she put forth a concerted effort to find the best paying job, so the loss of employment has the least impact on the other party and/or the child. If you have any questions concerning modification of support, call Peter Van Aulen today at 201-845-7400 for a free initial consultation.