Decrease in Alimony and A Credit to Overpaid Child Support as A Result of a Disability and Change of Circumstances
Docket No. A-5135-17T2; A-1048-19T1
Decided December 7, 2020
Submitted by New Jersey Alimony Law Firm, Hark and Hark.
In a recent unpublished decision the Appellate Division reviewed a trial court’s order granting a decrease in alimony and a credit to overpaid child support as a result of a Social Security decision of disability and a failure to disclose emancipation.
In Stewart, in 2008, the parties were divorced through entry of a dual judgment of divorce incorporating the terms of their property settlement agreement (PSA). Pursuant to the PSA, plaintiff was obligated to pay alimony of $435 per week and child support of $207 per week for the two children based on plaintiff’s income of $96,000 per year and defendant’s imputed income of $30,000 per year. Plaintiff’s child support obligation continued until the children turned eighteen or completed four continuous years of full-time college education, whichever came later.
In addition, the PSA provides that defendant had the option to purchase plaintiff’s interest in the marital home no later than July 1, 2010. In the event that she did not exercise that option, the marital home was to be sold immediately, with the net proceeds from the sale to be divided equally between the parties. The PSA also provides that the parties shall immediately list for sale a parcel of vacant land they purchased as an investment, with the net proceeds of the sale to be equally divided between the parties.
In 2017, plaintiff moved for a reduction in his child support and alimony obligations, alleging a change in circumstances based on a 2015 decision by the Social Security Administration declaring him permanently disabled following an injury at work. He alleged an inability to work and that his sole income was from disability benefits of about $30,000 per year and workers’ compensation benefits of $38,820 per year. In support of his motion, plaintiff submitted his CIS from around the time of the divorce and a current CIS.
Plaintiff also requested a credit for his overpayment of child support because his older child, without his knowledge, was emancipated by virtue of her withdrawal from full-time college six years earlier.
The trial court agreed with the Plaintiff that he was entitled to both a reduction in alimony and a credit to overpaid child support of over $35,000. The Defendant appealed. The Appellate Division found no abuse of discretion, as Plaintiff demonstrated sufficient changed circumstances warranting a reduction. In addition, the credit to child support was appropriate because plaintiff was in arrears, otherwise had the money been paid and used, child support would not have been paid back. The Appellate Division remanded in part for the trial court to review the ruling with defendant’s updated Case Information Statement (CIS).
Making an application for a modification of alimony and/or child support is not an easy task. Under the law, the movant needs to demonstrate a significant non-temporary change in circumstance. After that has been demonstrated, the movant also needs to show that the changed circumstances were non-temporary and significant. A finding by the Social Security Administration of disability is normally a change in circumstances when it results in a reduction in income.
This case is also important for the use of consent orders when coming to agreements in divorce and family cases. The agreements must be clear, in writing, and preferably filed with the court. They are interpreted by courts with an understanding of the surrounding circumstances and overall fairness and equity.
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