A Significant Non-Temporary Change of Circumstances May Be Used to Modify an Agreement or Court Order for Custody, Child Support, or Alimony
Docket No. A-2225-20
Decided July 11, 2022
Submitted by New Jersey Divorce Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey reversed an order modifying rehabilitative alimony into limited duration alimony and failing to properly calculate child support with a social security disability derivative benefit.
In Horvath, the parties married in October 1991. They had two children, a daughter who is now twenty-four years old and emancipated, and an unemancipated nineteen-year old son. They divorced pursuant to their DJOD, which incorporated their Property Settlement Agreement (PSA). The PSA provided for child support to be paid pursuant to the child support guidelines, and for plaintiff to receive rehabilitative alimony over the course of five years.
It is undisputed that shortly after the parties divorced, plaintiff was diagnosed with disabling multiple Sclerosis. As a result, plaintiff could not work and was eventually determined by the Social Security Administration (SSA) to be totally disabled as of January 1, 2008. Plaintiff began to receive SSD payments on or about May 11, 2009. It is also undisputed that defendant continuously paid alimony to plaintiff beyond the five-year period stated in the PSA until the orders entered in this action in 2020 and 2021.
On August 10, 2020, defendant filed a motion to terminate alimony and recalculate child support, which plaintiff opposed with a cross-motion to convert her rehabilitative alimony to permanent alimony. In his supporting certification, defendant argued that he was entitled to termination of alimony under the PSA and a reduction in child support because he had been overpaying for many years, plaintiff and their children were receiving SSD payments, and plaintiff was cohabitating with another person. Plaintiff explained in her supporting submission why she and the children continued to require even more in support than defendant had been paying, primarily due to her disability.
The motion judge entered an order granting defendant’s motion to terminate alimony effective February 14, 2012, and awarded him the right to a credit for his overpayment of alimony and child support, which was to be applied to his future child support obligation. The motion judge then reconsidered that alimony would terminate as of the date of filing, not in 2012. The judge mentioned plaintiff did not require limited duration alimony and did not quote the parties’ PSA.
Both parties appealed, and the Appellate Division found that it was inappropriate for the judge to mention limited duration alimony without referencing the parties’ PSA, specifically providing rehabilitative alimony for the plaintiff. in order to modify that arrangement, the court would need to find unusual circumstances to disrupt the parties’ PSA. What’s more, the judge’s calculation of child support was incorrect because the court improperly credited defendant a dollar for dollar reduction in child support for the derivative benefit as if it was defendant providing the derivative benefit. The matter was remanded for reconsideration of both alimony and child support.
In order to modify any agreement or court order for custody, child support, or alimony etc., the movant must show a significant non temporary change of circumstances to modify pursuant to Lepis v. Lepis. In order to convert a type of alimony into a different type, for instance limited duration alimony from rehabilitative alimony, there must be a showing of unusual circumstances, specific to that case. What’s more, when an individual receives a derivative benefit for social security disability, these amounts have to be imputed properly into the child support guidelines.
If you have questions about changes in circumstance, unusual circumstances, alimony, child support, divorce and custody, contact the experienced matrimonial divorce attorneys at Hark & Hark today.
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