Reduction In Child Support After Incarceration For Arrears
- July 8, 2015
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In Solomon v. Solomon, the Defendant appealed from a 2013 Family Court post-judgment Order that granted the Plaintiff’s Motion for reconsideration to compel the Defendant to pay substantial child support arrears from his 50% share of his 401(k) or IRA and the proceeds from the sale of a timeshare property. The parties in this case were married in 1996 and had three (3) children. They executed a property settlement agreement (PSA) in 2006 which was incorporated into their final dual judgment of divorce on the same day. The PSA required the Defendant 1) to pay the Plaintiff $300 a week in child support, and $325 per week in alimony for five (5) years; 2) divide the Defendant’s 401(k) equally between the parties; and (3) divide the parties’ ownership and usage of their timeshare property equally. In 2007, the court assigned to the Plaintiff an amount equal to 50% of the value of the Defendant’s IRA and found that the Defendant violated the Plaintiff’s rights by willfully failing to turn over to her half of the 401(k) in accordance with the provisions of their PSA. In 2009, the Defendant was sentenced to seven (7) years in prison. Subsequent to his entering into the PSA but before his incarceration, he was required to pay $35 per week toward support arrears. While he was incarcerated, the Defendant submitted an application to reduce his child support payments to $5 a week, to terminate his alimony, and to terminate his payment towards arrears. He argued that his incarceration amounted to a change in circumstances. In 2011, a Family Court judge denied the Defendant’s request to decrease his child support payments, but suspended the enforcement of his support obligations pending his release. By consent, the Defendant’s alimony obligation was terminated retroactive to 2008. In 2011, the Defendant was released to a work house. In 2013, the Family Court issued an Order pertaining to his child support obligation to which the Defendant moved for reconsideration. The judge who heard the Motion arguments, granted the Defendant’s Motion for reconsideration and ordered that 1) the Defendant maintain his 50% interest in the 401(k); 2) the parties continue to share ownership of the timeshare, 3) the parties submit current case information statements, and 4) denied the Defendant’s request to stay his existing child support obligation. In the interim, the Defendant’s child support obligation was increased due to a cost of living increase and another judge ordered that the Defendant pay $35 a week towards his $90,358.64 arrears. In response, the Plaintiff filed a Motion for reconsideration which was granted and the Defendant was ordered to pay half of his 401(k) or IRA toward his child support arrears and to convey his interest in the parties’ time share to the Plaintiff to put towards his arrears. This Order also reduced the Defendant’s child support from $366 week to $66 and ordered that he pay an additional $100 per week ward his arrears. The Defendant appealed arguing for a strict enforcement of the terms of the PSA. According to the Appellate Division, “Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability.” Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Yet, in this case, the court was guided by its long-standing view that the ” . . . obligation to provide child support ‘is engrained in our common law, statutory, and rule-based jurisprudence.'” Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010). “Child support is the right of the child and responsibility of both parents, not a child won or lost by the custodial parent from the non-custodial parent.” Pascale v. Pascale, 140 N.J. 583, 591 (1995). When considering all guiding principles that inform child support decisions and its standard of review, the court was satisfied that the lower court enforced the parties’ PSA to the children’s best interests and therefore affirmed the decision of the Family Court. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child support, alimony, divorce, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.