By Tadd Yearing
Recently, New Jersey’s Supreme Court ordered the release of a Hunterdon County man who had been jailed for more than eight weeks for falling behind in his alimony and child support payments and for failing to pay arrears. In a 5-2 vote, the high court granted the petitioner’s application for a stay pending the disposition of his appeal to the Appellate Division. While family court judges are generally loathe to incarcerate the supporting spouse for non-payment, as this can in fact cause more financial harm in the form of lost income or even loss of employment itself, the Hunterdon man was ordered to be jailed after he had fallen approximately $60,000 behind in his alimony payments.
There are many reasons a parent or former spouse may fall behind on child or spousal support payments. They may have lost a job or otherwise had a substantial change in income, which has been a common occurrence in the wake of the economic downturn over the last five or so years, or they may be experiencing medical problems that keep them from working. In some cases, people blatantly choose not to live up to their obligations.
No matter the reason, it is important to recognize that falling behind on support payments is a violation of a court order. Support enforcement actions brought by the other party can lead to serious consequences, including wage garnishment, loss of professional and driver’s licenses, and, as the man in the case above found out, jail time.
In the above case, the incarcerated party contended that the current support obligations were beyond his means. In the context of child support, when either party experiences a substantial change in financial circumstances following a divorce, they each have the right to petition the court to seek modification of support payments. Where a settlement agreement so permits, such changes may also support a request for modification of alimony as well. Generally, the court will hold an “ability to pay hearing” to determine whether in fact support needs to be adjusted. At these hearings, the petitioning spouse can present proofs about their current reduced income, available assets and overall inability to afford support at current levels and the opposing party has the opportunity to challenge those proofs.
While unemployment is generally viewed as a temporary status, and thus has not customarily been deemed a significant changed circumstance supporting modification, for payor spouses who have lost their jobs – or who have endured a significant drop in income – it is critical that they take affirmative steps legally and not simply ignore their obligations. As the man in Hunterdon County found out, you might find yourself spending significant time in jail.