I was in the family court here in Hunterdon County two Friday’s ago. It was motion day and the courtroom was packed with attorneys and a few pro se litigants ready to make their arguments to the judge about why she should alter her preliminary decisions, which are typically issued by fax the previous afternoon. What struck me about that morning, other than the fact that it was the busiest I had seen a family court on a motion day in some time, was that all the motions I heard involved applications to modify judgments as a direct result of the down turn in the economy. Such are the times.
Also, it became clear that day, as well as during the Family Law Symposium held in New Brunswick last month, that the Family Part court here in New Jersey has been swamped with modification applications due to loss of income and business set backs. A loss of income affects the ability of an obligor to cover child support, alimony and college expenses for the children. The problem, however, is that the obligation to pay a sum certain remains until the present judgment/order is officially modified. Often times, these applications cannot be resolved in one visit to court on motion day (after length and expensive preparation of certifications and briefs), but also require the court to hold plenary hearings to establish the facts and make findings of law. This takes months to schedule, and will be preceded by a period of discovery in which documents are exchanged and, perhaps, depositions are conducted. The problem is, if the former spouses are already financially stressed due to a job loss, how will they pay for another round of litigation?
More than ever, collaboration may be the best means of quickly addressing the effects of a bad economy, and before both of the households of the former spouses are beset with unpaid bills and violations of standing support orders.
The several judges whom spoke at the Symposium were asked how their perceptions of modification applications may have changed in the past six months. Before the economic down turn, most judges would expect a jobless obligor to take at least a year before coming to court and asking for a downward modification of support. They expected him/her to show a paper trail of attempts to regain employment, and/or proof that the previous income was unobtainable—and not due to their own voluntary acts. These wait times have varied from judge to judge, and from county to county.
The judges responded that, indeed, they were taking note of the impact of the job market and would not be as stringent in their proof requirements going forward. This was good news, but it still remains unclear just how long an obligor must wait, and just what proofs concerning employability or ability to maintain the previous income level they must present to satisfy the court that modification is warranted.
Regardless of how much time the judges will now require, and whether there needs to be a proof hearing before a decision will be issued, most people do not have the time or money to pursue the traditional method of modifying judgments and property settlement agreements in post-judgment applications. Further, the courts are now swamped with these applications. Therefore, former spouses should recognize that the sooner they get into a collaborative process to negotiate the support issues, the better off for the entire family. Once they reach an amicable, and equitable, agreement, it can be reduced to a consent order and sent to the court, which will sign it without any need for a court appearance. Now, the courts would much rather exercise this function, knowing that experienced collaborative attorneys have been involved, than add another post-judgment application to its docket.
Just as in divorce, there is a better way to resolve modification issues, such as college expense contributions and alimony, and that is through collaboration.
BE ADVISED that these comments are not legal opinions and are not to be relied upon as legal advice. If you need legal advice, contact your county bar association; most of which have referral services. If you desire a collaboratively trained and certified attorney, go to http://www.collaborativepractice.com/
© Kevin M. Kilcommons, 2009
Friday, February 20, 2009
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