Divorces are often complicated. It is not uncommon for a divorce to last many months, if not years. Clients may spend thousands of dollars, if not hundreds of thousands of dollars, trying to make a deal with their spouse. The result is usually the adoption of a comprehensive Marital Settlement Agreement that represents a compromise and bargained-for exchange between both parties. This is especially true as it relates to their position on the financial issues collateral to their divorce, including the payment of child support and alimony.

Typically, the support obligations for both child support and alimony are based, in a significant part, on the respective past incomes of the parties, and their prospective ability to earn an income in the future. Before the COVID-19 outbreak, modification of support was often a complicated and intense battle for both sides. The motions were typically complex and detailed. Often times there was more litigation for the parties after the entry of a Judgment of Divorce modifying support than before the Judgment was entered.

Now with the sudden and unforeseen outbreak of the COVID-19 pandemic, our local and national economy has imploded and is in a state of turmoil. The effect is that parties that once had the ability to pay at a certain level of support are not able to do so now, or the needs of a supported party may have increased because of a change in their own incomes. The existing controlling authority pre-outbreak was that immediate changes to your income were temporary in nature and should not trigger an immediate modification of support. But this now has to be re-addressed by the courts as we continue to see the unemployment rates rise both locally and nationally and as we continue to see families in need of money to pay for life's basic necessities. Are the existing rules fair and appropriate for the immediate and long term ramifications brought on by this crisis? Is there any way in which we could limit the need for costly litigation but still be fair to both sides? Or do we still need the courts to conduct a plenary hearing for a long term resolution to resolve most disputes in these situations?

The overwhelming number of divorce cases in New Jersey are resolved without the need of a trial, no matter how complicated the issues may seem or how acrimonious the litigants may become. Our courts encourage settlement of divorce matters from the very outset of the filing of a Complaint for Divorce. There are specific built-in events prescribed in the initial Case Management Order that are all intended to facilitate a settlement and the implementation of a Marital Settlement Agreement. It does not mean that most cases get resolved as quickly as litigants want them to be. Indeed, the two most common questions I hear from prospective clients are: 1) how much will this cost me? and 2) how long will this take? Two questions that I cannot ever answer. The reality is that the lifespan of a case is determined by many forces, some of which are controlled by the litigants or lawyers involved in the matter, and some of which are not.

Child support for a majority of cases in New Jersey is calculated by a complex formula known as "The Child Support Guidelines" that takes into consideration various factors, including the family's combined income, each parent's portion of that combined income, and the amount of overnight parenting time each parent spends with the child. In most cases, the amount of child support paid by one parent to the other is determined pursuant to a strict application of the Child Support Guidelines.

In extreme income situations (either extremely high or extremely low), or in the presence of other compelling circumstances, some deviations are permitted. Parents may deviate from the Guidelines for "good cause," although a rebuttable presumption exists that the child support amount determined according to the Guidelines is the appropriate amount. For parents whose combined net (after tax) income exceeds the Guidelines threshold of $187,200, the law requires that child support be calculated so as to account for the greater resources available in the family and the greater expenditures that are typically made in higher income families. For higher income families, a base child support amount is determined using the Guidelines formula, and that amount is then supplemented with an additional support amount based on the remaining family income, the children's needs, and certain other statutory factors.

Alimony is one of the most complicated financial issues to resolve in matrimonial cases. Unlike child support, there is no formula. N.J.S.A. 2A:34-23(b) cites no less than 13 statutory factors to be considered when determining an alimony award, including a catchall factor of "any other factors which the court deems relevant." As discussed in the Supreme Court of New Jersey case of Gnall v. Gnall, 222 N.J. 414 (2015), no one factor is singularly determinative and that all factors should be given weight in adjudicating an alimony award.  Nevertheless, the earned income, or the ability of each party to earn an income, is central to any analysis pertaining to alimony.

Under our existing law, alimony awards are subject to review and modification upon a showing of "changed circumstances." N.J.S.A. 2A:34-23; Crews v. Crews, 164 N.J. 11, 24 (2000) (quoting Lepis v. Lepis, 83 N.J. at 146). The party seeking to modify an existing support obligation "has the burden of showing such 'changed circumstances' as would warrant relief …." Lepis, 83 N.J. at 157. The party moving for modification must present a prima facie showing of changed circumstances to justify a plenary hearing on the matter. Miller v. Miller, 160 N.J. 408, 420 (1999). Only after such a showing is made will the court order discovery and conduct a hearing to "determine the supporting spouse's ability to pay." Ibid.

In New Jersey, pre-outbreak, child support was 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 had to file a motion with the court to increase or decrease the child support award originally entered. Like alimony, the party seeking a modification of child support had the burden to establish "changed circumstances" which were permanent, substantial and unanticipated since the time of the entry of the child support award.

The New Jersey alimony statute, N.J.S.A. 2A:34-23, as modified in 2014, addressed the issue of the timing of a modification application where the payor is unemployed or "has not been able to return to or attain employment at prior income levels." The statute explicitly provides that no application may be filed until the unemployment or reduction in income has lasted for at least 90 days. Although this can cause a delay in the filing of an application, it might not delay the actual benefit. The statute provides that the court may grant relief which is retroactive to the date of "the loss of employment or reduction of income."

In determining the application of the non-self-employed individual, the court must consider the following statutory factors under N.J.S.A. 2A:34-23(k):

1. The reasons for any loss of income;
2. Under circumstances where there has been a loss of employment, the obligor's documented efforts to obtain replacement employment or to pursue an alternative occupation;
3. Under circumstances where there has been a loss of employment, whether the obligor is making a good faith effort to find remunerative employment at any level and in any field;
4. The income of the obligee, the obligee's circumstances, and the obligee's reasonable efforts to obtain employment in view of those circumstances and existing opportunities;
5. The impact of the parties' health on their ability to obtain employment;
6. Any severance compensation or award made in connection with any loss of employment;
7. Any changes in the respective financial circumstances of the parties that have occurred since the date of the order from which modification is sought;
8. The reasons for any change in either party's financial circumstances since the date of the order from which modification is sought, including, but not limited to, assessment of the extent to which either party's financial circumstances at the time of the application are attributable to enhanced earnings or financial benefits received from any source since the date of the order;
9. Whether a temporary remedy should be fashioned to provide adjustment of the support award from which modification is sought, and the terms of any such adjustment, pending continuing employment investigations by the unemployed spouse or partner; and
10. Any other factor the court deems relevant to fairly and equitably decide the application.

Under circumstances where the changed circumstances arise from the loss of employment, the length of time a party has been involuntarily unemployed or has had an involuntary reduction in income shall not be the only factor considered by the court when an application is filed by a non-self-employed party to reduce alimony because of involuntary loss of employment. The court shall determine the application based upon all of the enumerated factors, however, no application shall be filed until a party has been unemployed, or has not been able to return to or attain employment at prior income levels, or both, for a period of 90 days. The court shall have discretion to make any relief granted retroactive to the date of the loss of employment or reduction of income.

In determining the application of the self-employed individual, the court must consider the following statutory factors under N.J.S.A. 2A:34-23(l):

When a self-employed party seeks modification of alimony because of an involuntary reduction in income since the date of the order from which modification is sought, then that party's application for relief must include an analysis that sets forth the economic and non-economic benefits the party receives from the business, and which compares these economic and non-economic benefits to those that were in existence at the time of the entry of the order.

Furthermore, and perhaps more relevant for this discussion is subparagraph (m):

When assessing a temporary remedy, the court may temporarily suspend support, or reduce support on terms; direct that support be paid in some amount from assets pending further proceedings; direct a periodic review; or enter any other order the court finds appropriate to assure fairness and equity to both parties.

I often believe that simple answers make the best solutions to complicated questions. We now need to simplify the ability of litigants, on both sides of the issue, to get relief from the court on a short term and long term basis as is appropriate. Luckily, there is statutory authority justifying a temporary remedy in modification cases. Pre-COVID-19 this remedy was used sparingly. Thus, despite the 90-day time frame set forth in the statute, there is an existing statutory remedy for our current crisis.

We are witnesses to an unprecedented situation. Although this may cause courts to make an immediate rush to judgment in some matters, and will still require each case to be considered on a case-by-case basis, the benefits to the litigants of immediate relief are significant and will certainly lessen the prospect of protracted and expensive litigation. There does not need to be a Plenary Hearing in each case. The court can fashion a remedy without a hearing. If the ultimate goal is fairness to both litigants, the courts need to determine that COVID-19 is an immediate change of circumstances that requires immediate remedies for both payors and payees.

Evan R. Weinstein is a Partner at Weinstein Family Law, A Professional Corporation, located in Short Hills. His practice is devoted exclusively to family law and related matters. In addition to representing parties in contested matters, Weinstein is also available for private mediations.