Alimony and Child Support Modifications Must Be Put into Writing and Filed with the Court
Docket No. A-2004-18T2
Decided September 11, 2020
Submitted by New Jersey Family Law Firm, Hark and Hark.
In a recent unpublished decision the Appellate Division reviewed a trial court’s ruling denying an application to extend limited duration alimony despite plaintiff undergoing health issues and being denied Social Security disability (SSD), and a denial of enforcement of child support arrears despite the defendant modified the child support payments without an order from the court.
In Certo, Plaintiff and defendant were married on October 11, 1992. Two children were born of the marriage: a son, born in 1993, and a daughter, born in 2000. During the marriage, defendant worked outside the home, while plaintiff cared for the children, both of whom had health needs requiring special attention.
Plaintiff filed for divorce on January 9, 2004. The marriage was formally dissolved pursuant to a dual final judgment of divorce (JOD) dated February 28, 2006, which incorporated a comprehensive property settlement agreement (PSA). The PSA required defendant to pay limited duration alimony of $2515 per month for twelve years. The PSA included an anti-Lepis v. Lepis, 83 N.J. 139 (1980) provision, providing that “this term cannot be extended under any circumstances, despite any possible changed circumstances, any right, claim or entitlement each may have or in the future acquire, to receive alimony from the other.”
Plaintiff was optimistic about building her career, but her plans changed in 2008, when she was diagnosed with Progressive Systemic Sclerosis (PSS). Plaintiff certified that she was subsequently diagnosed with Raynaud’s disease and then suffered from several other health problems, including Fibromyalgia, which were believed to be related to her PSS diagnosis. Since her PSS diagnosis, plaintiff has been out of work.
Meanwhile, during 2012, the couple’s son moved in with defendant. In December 2012, defendant began making monthly child support payments of $1700, and in either January 2015 or January 2016, he began making even further reduced monthly payments of $1000. Defendant reasoned that lower child support was warranted as he was then supporting the son, which included paying significant medical expenses, and he did not seek contribution from plaintiff. However, none of these reductions were pursuant to court order.
When plaintiff’s alimony award ended, she sought an extension by an application reopen the JOD and PSA on the basis of her unforeseen medical ailments. She further sought child support arrears in the full amount, prior to defendant’s reductions. The trial court denied plaintiff’s application to reopen alimony, as it was unclear from the testimony as to when plaintiff’s ailments actually began. Therefore, the court could not reopen alimony. On the child support issue, the Judge denied the request as well, because defendant paid for the medical expenses and care for the parties son, albeit without order from the court.
Plaintiff appealed. The Appellate Division found that the trial court failed to consider the alimony statute in effect at the time of the parties PSA when considering whether to reopen alimony and remanded for a ruling on the statute. With regard to the child support issue, the Appellate Division reversed the trial court’s decision because the child support statute contains an anti-retroactivity clause, that cannot allow child support to be modified beyond the date of an application to modify.
This case is important for the use of court orders when coming to agreements for financial obligations. When seeking a modification, or coming up with an agreement with the other party to modify any obligations contained in a Property Settlement Agreement (PSA), the agreement must be put into writing and filed with the court. Without it, a party seeking to enforce the original order at any time may be able to do so, despite agreeing to a modification outside of court. Do not let this happen to you. Make sure your agreements are placed into writing and that writing be filed with the Court as soon as a modification is sought.
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