Q. I pay alimony and want to move out of New Jersey to be closer to my kids. If I get a new job in a similar field to be closer to family, and my ex spouse is working more than at the time of divorce — she was working part-time, no income imputed — and is now working full-time, what happens? My ex-spouse improved earnings by working full-time and I make the same, so can I get a downward modification? What happens if I earn less?
— Divorced
A. It’s nice to hear you want to be closer to your children.
Any time a judge in family court is asked to rule on an application to modify a support award, whether it be alimony or child support, it will be very fact sensitive.
The individual making an application must first meet his or her burden of establishing that there has been a “permanent, significant change of circumstances,” said Kenneth White, a certified matrimonial attorney with Shane and White in Edison.
“If that initial burden is satisfied, the judge will then analyze the specific facts and consider whether to modify the support obligation,” White said. “Absent clear, undisputed facts, prior to making a decision the judge may provide a period of time for discovery — the exchange of information and documentation — as well as require a plenary hearing, akin to a trial.”
White said there are no clear rules as to what qualifies as a significant, permanent change of financial circumstances.
A 5% upward or downward change in annual income would generally not qualify as a significant, permanent change, while a 20-plus percent modification may very well qualify, he said.
If your ex-wife’s income has significantly increased since the time your alimony was first set and that increase was not accounted for as being anticipated within the terms of your marital settlement agreement or the decision made by the judge that increase may very well entitle you to a downward modification of your alimony obligation, White said.
Specifically, you will be able to establish that there has been a significant, permanent change of circumstances, and then the analysis will shift as to whether your ex’s increased annual earnings has decreased her need for alimony at the same rate as previously set, he said.
A judge cannot bind anyone to a particular employer, and you will always be free to change jobs as well as relocate outside of the state, White said. The question will be whether it is reasonable for the judge to accept your lower annual income at this new job, perhaps out-of-state, as the correct income to use in any future analysis of your alimony obligation or whether the judge will impute income to you based on your earning history, White said.
There is no black and white answer here as it is very fact sensitive and different judges could very likely reach different conclusions, White said.
White said the primary inquiry will be whether you made a good faith effort to find comparable employment in the same field at the best annual income available.
“If a judge finds that you have, he/she would likely not impute a higher wage to you,” White said. “If the judge finds you could be earning more, but for your voluntary change of employment, the judge could impute a higher annual income to you based on your earning history within any analysis of whether your alimony obligation should be modified.”
Consider speaking to an experienced matrimonial law attorney who can help you review the specifics of your case.
Email your questions to Ask@NJMoneyHelp.com.
Karin Price Mueller writes the Bamboozled column for NJ Advance Media and is the founder of NJMoneyHelp.com. Follow NJMoneyHelp on Twitter @NJMoneyHelp. Find NJMoneyHelp on Facebook. Sign up for NJMoneyHelp.com’s weekly e-newsletter.
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