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To read the SDFL Divorce Guide, you must agree to the following:

(1) Shaw Divorce & Family Law LLC does not represent you;

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(3) the Divorce Guide is for informational purposes only and does not constitute legal advice.

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SHAW DIVORCE & FAMILY LAW LLC

New Jersey Divorce Guide

A comprehensive free guide to divorce and family law in the State of New Jersey.

Family Law

HOW TO CHANGE CUSTODY & SUPPORT ORDERS

WHAT CAN I DO WHEN THE JUDGE GETS IT WRONG?

When you disagree with a Court Order, you have five basic options: (1) request correction of a clerical error; (2) file a motion for reconsideration; (3) file an appeal; (4) file a motion to vacate; and (5) file a motion to modify based on “changed circumstances,” which applies only to custody and support orders.

CLERICAL ERRORS. Correction of a clerical error can occur at any time and does not necessarily require a motion. Clerical errors include, for example, simple mathematical mistakes. But be warned, there is often significant disagreement over whether an error was merely clerical or was actually a substantive mistake. You can read more about correcting clerical errors here: [Guide to Clerical Errors.]

RECONSIDERATION. A motion for reconsideration must generally be filed within twenty days of receiving a final Court Order. However, when seeking reconsideration of a non-final Court Order (i.e., “interlocutory” or “pendente lite”), no time limit applies and the burden is much lower. You can read more about motions for reconsideration here: [Guide to Reconsideration.]

APPEAL. An appeal of a final Court Order must generally be filed within 45 days of the date on which the Order was entered. However, when appealing a non-final Court Order (i.e., “interlocutory” or “pendente lite”), you must generally file that appeal within 20 days of the date on which you received the Order. There are exceptions and circumstances in which these deadlines can be extended. You can read more about appeals here: [Guide to Appeals.]

MOTION TO VACATE. Even after those deadlines expire, you have another option: file a motion to vacate the Order. There are several reasons listed in the Rules of Court that might warrant vacating a Court Order. Depending on the reason for which you are asking to vacate the Court Order, you are required to file your motion within either one year of the Order’s entry, within a “reasonable time,” or at any time. You can read more about motions to vacate here: [Guide to Motions to Vacate.]

CUSTODY/SUPPORT ORDERS. The fourth option applies only to custody and support orders. Those kinds of orders are modifiable at any time on a showing of “changed circumstances.”

This section of the Divorce Guide discusses modification of custody and support orders based on changed circumstances.

Additionally, you can read more about the law governing custody here: [Guide to Custody.] You can read more about the law governing child support here: [Guide to Child Support.] You can read more about the law governing alimony (otherwise known as spousal support) here: [Guide to Alimony.]

All the requests above, except appeals and correction of clerical errors, are made by filing a motion. You can find out how to file a motion here: [Guide to Filing Motions.]

INAPPLICABLE PENDENTE LITE

Preliminarily, the “changed circumstances” standard discussed herein only applies after support or custody has been set by a final judgment.

When support or custody have been set on a temporary basis (often referred to by the Latin phrase “pendente lite,” which means “during the proceeding”), the Court has the authority to modify its order at any time “for good cause shown and in the service of the ultimate goal of substantial justice.” [Lombardi v. Masso, 207 N.J. 517 (2011).] [R. 4:42-2.] The Court has “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.” [Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983).]

This standard is far more flexible and discretionary than the “changed circumstances” standard, which applies only after final judgment has been entered.

CHANGED CIRCUMSTANCES – CHILD SUPPORT & ALIMONY

All forms of support orders, including both child support and alimony, are subject to modification if circumstances change. The standard for a change in the amount of support payments is that “the party seeking modification has the burden of showing such ‘changed circumstances’ as would warrant relief from the support or maintenance provisions involved.” [Lepis v. Lepis, 83 N.J. 139, 157 (1980).]

Examples of changed circumstances include: (1) an increase in the cost of living; (2) increase or decrease in the supporting spouse’s income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse’s loss of a house or apartment; (5) the dependent spouse’s cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law. [Lepis v. Lepis, 83 N.J. 139, 151 (1980).]

“[W]hen children are involved, an increase in their needs – whether occasioned by maturation, the rising cost of living, or more unusual events – has been held to justify an increase in support by a financially able parent. Their emancipation and employment may warrant reduction in their support.” [Lepis v. Lepis, 83 N.J. 139, 152 (1980).]

It is, therefore, up to the moving party to make a prima facie case that changed circumstances have occurred. [Lepis v. Lepis, 83 N.J. 139, 157 (1980).]

To determine whether the movant has established a prima facie case of changed circumstances, the Court must consider the terms of the order that it is being asked to modify and compare the facts as they were when that order was entered with the facts as they stand currently. [Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958).]

“By prima facie is meant evidence that, if unrebutted, would sustain a judgment in the proponent’s favor.” [Baures v. Lewis, 167 N.J. 92, 118 (2001).]

Second, after the moving party has made the prima facie showing of changed circumstances, the court may order financial disclosures of both parties to allow the court to make an informed decision as to “what, in light of all the [circumstances] is equitable and fair.” [Lepis v. Lepis, 83 N.J. 139, 158 (1980).]

“Once the above steps have been completed, the court must decide whether to hold a hearing . . . . [A] party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary. . . . In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded.” [Lepis v. Lepis, 83 N.J. 139, 159 (1980).]

Bare conclusions unsupported by factual evidence will not create a question of fact warranting a hearing to resolve the disputed fact. [Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 87 (App. Div. 2001).]

Please read more in-depth information about child support here: [Guide to Child Support.] The child support section of the New Jersey Divorce Guide contains additional information related to modification of child support.

Please read more in-depth information about alimony here: [Guide to Alimony.] The alimony section of the New Jersey Divorce Guide contains additional information related to modification of alimony.

CHANGED CIRCUMSTANCES – CUSTODY

Even if custody has been set by a final order, you can always request that the Court to change custody (either legal, physical, or both) by filing a post-judgment motion.

Modifying custody is a two-step process. Specifically, “[t]he Lepis two-step process procedure [discussed above in relation to child support and alimony] applies to changes in child custody.” [R.K. v. F.K., 437 N.J. Super. 58 (App. Div. 2014).] “Thus, ‘a motion for a change in custody … will be governed initially by a changed circumstances inquiry and ultimately by a simple best interests analysis.’” [R.K. v. F.K., 437 N.J. Super. 58 (App. Div. 2014).] Stated otherwise, the person seeking modification must first demonstrate “changed circumstances” since the custody order or agreement was entered. Assuming that requirement has been met, the person seeking modification must next show that the order or agreement is no longer in the best interests of the child. [Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135 (App. Div. 2003).]

Where a court is called upon to make a custody determination, “the ultimate judgment is squarely dependent on what is in the child’s best interests.” [Baures v. Lewis, 167 N.J. 91, 115 (2001).]

“The touchstone for all custody determinations has always been ‘the best interest[s] of the child.'” [Faucett v. Vasquez, 411 N.J. Super. 108, 118 (App. Div. 2009).]

When determining the best interest of a child in custody or parenting time disputes, the court must consider and apply the factors listed in N.J.S.A. 9:2-4(c). [Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007).]

The judge must articulate reasons for the custody determination and refer specifically to the pertinent statutory criteria and generally to the statutory scheme. [Kinsella v. Kinsella, 150 N.J. 276, 317 (1997).]

The best-interest analysis is an additional requirement “superimposed upon an analysis of the statutory scheme.” [Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994).]

The statutory factors governing custody are as follows: “the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children.” [N.J.S.A. 9:2-4(c).]

Notably, “[a] parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.” [N.J.S.A. 9:2-4(c).]

These statutory factors apply equally to parenting time disputes, which is merely another term for physical custody.

To determine whether the movant has established a prima facie case of changed circumstances, the Court must consider the terms of the order that it is being asked to modify and compare the facts as they were when that order was entered with the facts as they stand currently. [Sheehan v. Sheehan, 51 N.J. Super. 276, 287-88 (App. Div. 1958).]

Usually, the determination of parenting time requires a plenary hearing. “[T]he matter of visitation is so important . . . that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare, a plenary hearing must be required by the court even if the parties have waived it.” [Fusco v. Fusco, 186 N.J. Super. 321, 327 (App. Div. 1982).]

Nevertheless, there is no per se rule that an evidentiary hearing is required for all modifications of custodial and parenting arrangements. [Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 81 (2006).] In deciding whether to hold a hearing, the Court may consider whether genuine issues of fact exist that require a hearing. [Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995).] The Court may also consider the “financial and personal” costs to the litigants of lengthy hearings. [Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 81 (2006).] The Court has emphasized that a plenary hearing is necessary “only where a prima facie showing has been made that a genuine issue of fact exists bearing upon a critical question such as the best interests of the children…” [Barblock v. Barblock, 383 N.J. Super. 114, 123 (App. Div.), certif. denied, 187 N.J. 81 (2006).]

Additionally, in deciding a custody and parenting time dispute, the Court may interview a child of sufficient age and maturity to express his or her opinion on the subject of custody. Nevertheless, “[t]he statute only requires the judge to consider the child’s ‘preference,’ when he or she is ‘of sufficient age and capacity to reason so as to form an intelligent decision[.]'” [D.A. v. R.C., 438 N.J. Super. 431, 460 (App. Div. 2014).]

Procedures for interviewing children are set forth in Rule 5:8-6, which provides as follows: “As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court. Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody.” [R. 5:8-6.]

The Appellate Division has cautioned as follows: “The Court should also ensure and make clear that ‘neither parent’ is permitted ‘to discuss nor reveal the contents of the interview with the children or third parties without permission of the court.’ We recommend the court enter a case management order to memorialize this particularly important aspect of the interview process. This order must make clear that any violation of this confidentiality provision may expose the responsible individual to sanctions pursuant to either a motion to enforce litigant’s rights brought by a party under Rule 1:10-3, or Summary Contempt Proceedings initiated by an Order to Show Cause under Rule 1:10-2.” [D.A. v. R.C., 438 N.J. Super. 431, 459 (App. Div. 2014).]  

Neither the rule nor the statute requires “the judge to ask a child to select between two opposing parents.” [D.A. v. R.C., 438 N.J. Super. 431, 459 (App. Div. 2014).]  

Please read more about custody here: [Guide to Custody.] The custody section of the New Jersey Divorce Guide contains additional information related to modification of custody.

PROCEDURAL REQUIREMENTS

The procedural requirements for various motions, including motions to modify custody and support (depending on the circumstances), are addressed elsewhere in the New Jersey Divorce Guide. Specifically, you can read more about those requirements here: [Guide to Filing Motions.]

DATE OF REVIEW

“[T]he changed circumstances determination must be made by comparing the parties’ financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations.” [Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).]

AGREEMENTS FOR AUTOMATIC MODIFICATION ENFORCEABLE ONLY IF FAIR, JUST, AND EQUITABLE

“Plaintiff argues that the trial court erred in modifying the support agreement on the basis of changed circumstances that were anticipated and provided for in advance by the parties. She contends that Lepis v. Lepis[] should not be used to modify an agreement that sets forth in advance a fair procedure for addressing changed circumstances. We disagree.” [Rolnick v. Rolnick, 262 N.J. Super. 343, 351 (App. Div. 1993).]

“In Petersen v. Petersen, the Supreme Court specifically considered the validity of clauses which provide for the automatic escalation or adjustment of such payments in fixed amounts correlated to specific changes in the incomes of the respective spouses. The Court there held that such clauses, like the one in the instant agreement, are not invalid per se, and it went on to instruct that the proper procedure for determining whether such a clause is enforceable according to its terms is for the trial court to inquire whether under changed circumstances the enforcement of those terms would be fair, just and equitable.” [Rolnick v. Rolnick, 262 N.J. Super. 343, 354 (App. Div. 1993).]

“Although escalation clauses are not invalid per se, it does not follow that they are to be automatically enforced according to their specific terms. Enforcement of such agreements remains a judicial responsibility and is subject to judicial supervision.  Thus, the supporting spouse who is subject to a matrimonial agreement with an escalator clause may still seek to have the escalator modified because of changed circumstances, even if the subsequent events concerning child support were foreseeable, and a fortiori, if the events were unforeseeable.” [Dunne v. Dunne, 209 N.J. Super. 559, 566 (App. Div. 1986).]

CHANGED CIRCUMSTANCES INAPPLICABLE TO EQUITABLE DISTRIBUTION

“Unlike an award of alimony which can be adjusted after divorce to reflect unanticipated changes in the parties’ circumstances, a property division or equitable distribution may not be adjusted.” [Monte v. Monte, 212 N.J. Super. 557, 561 (App. Div. 1986).]

“[A]pplications for relief from equitable distribution provisions contained in a judgment of divorce are subject to R. 4:50-1 and not, as in the case of alimony, support, custody, and other matters of continuing jurisdiction of the court, subject to a ‘changed circumstances’ standard.” [Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004).]

A motion filed under Rule 4:50-1 is more often called a “motion to vacate.” You can read more about motions to vacate here: [Guide to Motions to Vacate.]

Andrew M. Shaw, Esq. - Somerville, NJ Divorce Lawyer

Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.

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ASSOCIATIONS & MEMBERSHIPS:

 

  • American Bar Association - Family Law Section
  • New Jersey State Bar Association – Family Law Section
  • New Jersey State Bar Association – Appellate Practice Special Committee
  • Somerset County Family Law Practice Committee
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