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|May 21-27, 2009
Change of circumstance
Job losses bring influx of requests to reduce child support
by John Petrick
Peter Triantafillou had the life. A wife and two kids in Ramsey, N.J. A job as a trader earning $300,000 a year. That was 2006.
Since then, he got a divorce and, as part of the settlement, agreed to pay $5,000 a month in child support. It seemed like a reasonable amount, when he was making six figures. But after last year’s divorce settlement, he was laid off twice. Though now employed again, he makes a far cry from what he used to — $60,000 a year, he says. That’s just enough to cover his support payments, with nothing left over.
In a recent survey of the American Academy of Matrimonial Lawyers of Chicago, 39 percent of the nation’s top divorce attorneys cite an increase in modifications being made to child support payments since the economic downturn began. Additionally, 42 percent of the members report a rise in the number of changes made to alimony payments.
When Triantafillou started falling thousands of dollars behind on his payments, his initial brush with the system was harsh, he says. “They had an arrest warrant on me. I had to go to jail for two days,” he says. “I could understand if I was a deadbeat dad. Or I was on the run or something. But I’m here, picking up my kids after school. I’m involved. Just because I don’t have that much money to pay anymore doesn’t mean I should be chastised.”
Before arrears built up any further, Triantafillou, 36, filed a motion in Superior Court’s Family Division in Hackensack asking a judge to reconsider his child support obligation.
While getting a judge to reduce child support payments because of a change in employment status was once quite difficult, today’s brutal economy and recession are making judges think again, observers say.
Getting laid off — or switching to a lower-paying job — was once considered by the courts a temporary setback in a request to reduce a spouse’s child support obligation. The person, it was presumed, could find a comparable job soon enough, with as good a salary. These days, however, all bets are off.
“The definition of ‘temporary’ is different now than it was,” says Judge Michael J. Diamond, presiding judge of Superior Court’s Family Division in Paterson, N.J.
Morristown attorney Ed O’Donnell, chairman of the state bar association’s Family Law Executive Committee, says judges are looking at things in a whole new context. “The body of law that has grown up around these applications says that you’re only entitled to reductions when there has been a permanent change of circumstances — not temporary ones. But the body of law doesn’t necessarily define what that means.
“In practice, I would say that it usually requires in excess of six months before a judge will say, ‘This is possibly a real change in circumstances.’ And obviously, if you are the person paying support, six months could mean having your house foreclosed on, and lots of other things happening,” O’Donnell says. “Six months is a long time, when you’re desperate.”
The state Administrative Office of the Courts doesn’t keep statistics on modification requests specifically, and Diamond says it is too soon to ask that office to parse the data for an answer. But Diamond and attorneys in the field say they are definitely beginning to see an influx in reduction applications because of layoffs or downsizing. A matrix of factors goes into a judge deciding whether to grant the request, not the least of which is information provided by the other spouse, who often opposes the requested modification.
“I’m defending a case now where the man was a house painter,” says attorney Bruce Chase of Hackensack, who specializes in family law. “He went to court claiming he has less house painting work and is entitled to a reduction. But part of why he is not earning what he used to is because he has remarried, his wife has money and he is not working as hard. On its face, he is making less money. But when you look at it, you have to see why. Is it really because of the bad economy?”
Experts say if you’re making an application, don’t expect showing your pink slip to be enough. “If you lose your job on April 15, you can’t file on April 16 saying you want a reduction,” Diamond says. “Just because somebody loses their job, if they have $50,000 in the bank, they may have to draw off of those assets. They have to show what efforts they’re making to get another job, and what their employment experience has been. And there has to be a time delay between the time they lost their job and when they made their application.”
Diamond says the situation has become serious enough that it’s being discussed at regular meetings of the state Conference of Presiding Family Judges, of which he is chairman. “We all talk about our different experiences, to come up with common threads on how to address the issue,” he says. “This is new. It’s untapped. We have to be creative.”
Hackensack attorney Robert Corcoran, president of the New Jersey chapter of the American Academy of Matrimonial Lawyers, said post-judgment modifications (the legal name for the applications) were a hot topic at a recent statewide forum on family law in January.
“Judges are becoming more sympathetic” to former spouses’ efforts to reduce payments, he said. “They realize the economy is in a tailspin, and you can’t get blood from a stone.”
Triantafillou, who says he can’t afford an attorney and is representing himself, is awaiting his initial court hearing this month. He says he’s worried.
“They look at your ability to earn. So even though I make $60,000 a year, they may say, ‘Your ability to earn is $150,000,’ “ he says. “But there are no jobs out there that are handing out $150,000. At least, not right now.”
(c) 2009, North Jersey Media Group Inc. Visit The Record Online at http://www.northjersey.com/
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