Thursday, June 07, 2012

In New Jersey, if you agree to a high child support number, can you ever get it lowered?

In New Jersey, like in Pennsylvania, we have child support guidelines.  In order to calculate a child support obligation, we determine the respective incomes or earning capacities of each of the parents and plug the numbers into the guidelines.  However, the calculation lacks simplicity in that many deviations exist from the standard guideline amount and litigants can have disparate views on each other’s income or earning capacity.  However, calculating a base child support number will be the best starting point in order to negotiate a final settlement.

Sometimes the basic child support number simply is not enough for the parent receiving child support.  Actually, most parents receiving child support believe that the basic child support number is not enough.  In some cases, the obligor parent (the parent paying support) will agree, for whatever reason whether from guilt, altruism or necessity, to pay child support in an amount greater than the guideline number.  The parties’ agreement becomes a court order.  

As many people understand, child support is always modifiable.  When there is a change in circumstances, child support will be reviewed and the numbers are recalculated.  At that point, the question becomes: whether the obligor parent will still be held to an above-guideline amount when the child support is recalculated if the obligor parent has previously agreed to pay an above-guideline amount?   What happens if he or she no longer wishes to be generous?  If the obligor parent agrees to pay an above-guideline child support at one time, is he or she bound to that forever?

The Superior Court of New Jersey in Ocean County recently faced that very question in the case of Musico v. Musico, Docket no. FM-15-532-07N.  The parties had originally consented to an above-guideline level of child support.  Some time later, the defendant/father petitioned to reduce his child support on the basis that he now had increased time with the children.  In their original divorce agreement, the parties had agreed that father would pay the guideline child support sum of $161.00 per week, plus the cost of the plaintiff/mother’s health insurance.  In the same agreement, mother agreed to waive any type of alimony.  However, the settlement agreement failed to expressly state that mother had waived alimony in exchange for an increased child support number in order to cover her health insurance.

When father later petitioned to reduce his support amount, he argued that the prior agreement to pay above-guideline child support was not linked to mother’s decision to forever waive alimony.  However, mother countered that his request was unfair and inequitable, considering that she had waived alimony on the basis that she expected father to pay the above-guideline child support so that she could pay her own health insurance.

The court reviewed the law governing contracts and child support.  The court also reviewed the circumstances of the parties’ original divorce agreement.  In so doing, the court concluded that mother would have been entitled to alimony and her waiver of same must be considered in the context of calculating the new child support number.  

The court held that when parties enter into a child support agreement that is above-the-guidelines and then later petition to change it based on a change in circumstances, then the new calculation must first begin with a base child support guideline calculation.  However, the analysis will continue because the court will review the prior agreement and current status quo to determine if there are additional equitable facts for the court to consider in setting a new child support figure, which may remain an above-guideline number.  

1 comment:

Lee Spano said...

This sounds very similar to my case.
Lee spano