In New Jersey, child support is always subject to modification, whether upward or downward. If a party has experienced “changed circumstances” as defined by Lepis v. Lepis, 83 N.J. 139 (1980), the payor or payee may file a motion with the Court to increase or decrease the child support award original entered. The party seeking a modification of child support has the burden to establish “changed circumstances” which are permanent, substantial and unanticipated since the time of the entry of the child support award.
Examples of changed circumstances include but are not limited to the following:
- Job loss;
- Gaining a higher paying job;
- Changes to parenting time (increase or decrease);
- Major health issues of the parent;
- Major health issues of the child;
- Permanent disability of the parent;
- Change in expenses necessary to raise the child; and
- Additional children the parent needs to support.
The ultimate determination as to whether a modification is warranted is based upon a fact sensitive analysis, evaluated by the court. Upon a showing by the party seeking modification that they have experienced changed circumstances, the Court may require discovery, and the scheduling of a plenary hearing in the event the parties are unable to reach an agreement as to the modification.
To protect the existing “duty of support” to the child, N.J.S.A. 2A:17-56.23a provides in relevant part that child support should not be retroactively modified by the court except as follows:
With respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court.
Therefore, retroactive implementation of a child support modification may only be made back to when the other party is put on written notice that a change of circumstances has occurred and a motion to address the issue will be filed within 45 days of such notice. Where the motion is not timely filed within that 45-day period, the retroactive implementation may only be made back to the date when the motion is actually filed. The only situation that deviates from the statute is where modification is sought retroactive to the date of the child’s emancipation, which is permitted even if it occurred long before notice was provided or a motion filed. Furthermore, this statute was created to protect the child and thus, does not prohibit a retroactive increase of child support.
When child support is paid through the New Jersey Child Support Probation Department, child support is also subject to modification in accordance with the Cost of Living Adjustment pursuant to Rule 5:6B of the New Jersey Court Rules. The Court Rules provide that all child support orders “entered, modified, or enforced after [September 1, 1998] shall provide that the child support amount will be adjusted every two years to reflect the cost of living.” A cost of living adjustment is automatically performed by the New Jersey Child Support Probation Department. If a litigant is paying or receiving child support outside of the Probation Department, it is incumbent upon the payor/payee to file a motion for an adjustment commensurate with the cost of living. However, a cost of living increase will not be effective if the payor’s income has not increased at a rate equivalent to the rate of inflation.
The attorneys at Donahue, Hagan, Klein & Weisberg have experience in negotiating, mediating and litigating the complex nature of child support modifications and can provide the necessary advice in this area.
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