A vicious cycle exists in the family courts: Skip child support. Go to jail. Lose job. Repeat.
Walter Scott is now known nationwide as the unarmed black man shot fatally in the back on video in North Charleston, South Carolina. You can view the video here. Fair warning, however, it is graphic. Recent details released by the New York Times indicate that Walter Scott may have attempted to flee because he was behind on child support.
The inability to meet unrealistic support obligations is addressed in family courts every single day. If you’re facing (or caught in) this vicious cycle, unfortunately New Jersey law is not in your favor. Courts often “impute” income, which is to say that the Court may set support obligations not based on your actual earnings, but based on a fictional figure derived from a judge’s assessment of your ability to earn. Over and over again, we have litigated cases where an imputation of income is wildly unrealistic. Child support and alimony obligations may remain tied to employment in a field in which you haven’t worked in years. This is especially true of those who worked in the financial industry prior to the Great Recession of 2008, but it consistently affects people everywhere and throughout every profession.
Courts may also decline to modify support obligations where the change in circumstances is not “permanent,” which has been deemed to include temporary loss of employment. The revised alimony statute addresses this issue to some extent, and seems to encourage temporary remedies, but it may be several years before its effects are felt throughout New Jersey’s Courts, and many more before the same rules are applied to child support (if ever).
Whether it’s alimony or child support, the Probation Department or the Courts are likely to issue a warrant for your arrest if you fall far enough behind. While you are entitled to counsel if you face incarceration for failure to pay support, the problem has probably already spiraled out of control by the time you are arrested and brought before a judge. Prior to incarceration, you may be stripped of your driver’s license or professional licenses, which will almost undoubtedly cause you to lose your job and to fall further behind in support.
The key to avoiding this scenario is take action early. The time to move is long before you’re sitting on the jailhouse steps (although it’s not too late even then). If you are negotiating an agreement, make sure that the support obligations therein are reasonable in light of your earning history. Include terms in the agreement specifically providing for automatic suspension of support if you lose your job. In tact families go through hard times together, and divorced families should too.
If support has already been established, file a motion to modify based on your present financial circumstances. Get all of your paperwork in order before doing so. Motions in family court are often won and lost on the failure to include the proper supporting documentation. If you don’t have what you need, exercise patience and make sure all of oyur ducks are in a row before anything is presented to the Court. You may only get one shot. Tailor your arguments to the law, and plan for the counterarguments.
Finally, if you can afford it, hire the most qualified counsel available. It may be the most important investment in your future that you ever make.