Here's a prior post. Hope it helps:
From Fall & Romanowski, New Jersey Family Law, Relationships Involving Children (GANN), beginning on page 723:
g. Post-judgment incarceration or loss of professional license. "[L]ong term incarceration is a significant change of circumstances which prevents the obligor from earning money to pay child support." Bergen County v. Steinhauer, 294 N.J. Super. 507, 510 (Ch. Div. 1996). Nevertheless, incarceration typically generally results in the suspension of the support obligation or enforcement efforts instead of modification of the underlying award. See 39:1. In both Bergen County v. Steinhauer and Topham-Rapanotti v. Gulli, 289 N.J. Super. 626, 634 (Ch. Div. 1995), the Chancery Division suspended the incarcerated obligor's support obligation until his release. As discussed below, this approach was approved in Halliwell v. Halliwell, 326 N.J. Super. 442, 457-458 (App. Div. 1999).
In Topham-Rapanotti, the court suspended enforcement efforts but permitted arrears to continue to accrue, reasoning that the defendant's incarceration was a voluntary act that precluded relief from the child support obligation. In Steinhauer, however, the court suspended the obligation completely, effectively terminating the duty to pay support during the length of the obligor's incarceration. The Steinhauer court explained that it would be irrational to continue the support obligation while the incarcerated obligor was obviously unable to pay, given the effect of reduced collections on the State's ability to receive federal funding. The court stressed, however, that whether to discontinue the support obligation during the period of incarceration requires a fact-sensitive approach that takes into consideration the length of the obligor's sentence and the extent of his or her assets, if any.
The Appellate Division appeared to resolve the conflict in Halliwell v. Halliwell,
326 N.J. Super. at 457-458. There, the defendant, whose post-judgment incarceration was expected to last between four and fifteen years, sought to eliminate his support obligation through a modification request. Relying on Topham-Rapanotti, the trial court denied his request, reasoning that incarceration was a voluntary act that precluded entitlement to a reduction in the support award. Contrary to both Steinhauer and Topham-Rapanotti, however, the trial court refused to suspend the continued weekly support obligation. The Appellate Division affirmed the denial of the modification request, but reversed the court's refusal to suspend enforcement efforts, instead suggesting:
[I]n cases where the obligor has been sentenced to a lengthy period of incarceration and has no assets, [the better practice] would be to defer any action on the obligor's motion and to transfer the matter to the inactive calendar pending the obligor's release from the custodial sentence. Coincident with the obligor's release, [a request for modification] would be considered after each party filed an updated case information statement. Utilizing the child support guidelines then in effect, the court could easily enter an order retroactive to the date of the obligor's initial motion divisible between current support for the future and an arrearage payment attributable to the period of incarceration subsequent to the date of filing of the obligor's modification motion but based on the obligor's earning capacity.
In Kuron v. Hamilton,
331 N.J. Super. 561,
570 (App. Div. 2000), a different appellate panel disagreed with Halliwell and Topham-Rapanotti, rejecting their "per se" or "brightline" approach that voluntary conduct necessarily precludes a modification of support on the basis of changed circumstances. In that case, the defendant's income was reduced by nearly half after he was disbarred for misappropriating client funds. Although he was eventually incarcerated for the misappropriation, the request for downward modification that was before the court was based solely on his decreased income. Due to the voluntary nature of the circumstances leading to the income reduction, the trial court denied the request. Reversing, the Appellate Division explained:
the question cannot be decided by reflexively disallowing reduction whenever a diminution of income has resulted from voluntary conduct. Such an approach, ... "has the virtue of simplicity, but little else." ... [I]nstead, ... such a situation requires a variety of factors and circumstances to be taken into account. ... Among them are the motives of the payor, the timing of the conduct that brought about the reduction in income, the payor's ability to meet the mandated support obligations even after the reduction in income, and the ability of the payee to provide for himself or herself. ... Good faith in the context of changed circumstances is concerned less with the specific conduct that has led to the reduction in income and more with why the payor has adopted his or her course of action, ... and with the relationship of the payor's conduct and motives to the parties' positions in the matrimonial matter.
Thus, although the obligor's volitional conduct resulted in his disbarment, the court recognized the relevance of motive, in particular, to avoid the child support obligation. The court therefore vacated the trial court's order denying modification on a per se basis and remanded for a full review of the current financial circumstances of each party.
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
Original Message:
Sent: 11-09-2015 15:53
From: Ann Fabrikant
Subject: Child Support Arrears during Prison Term
Hi all! My colleague asked me to post the following question:
I have a client who was in prison for a few years, at which time his obligation was never frozen. He is in a substantial amount of arrears and is seeking a credit for the arrears that built up when he was in prison. I need some case law addressing this.
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Ann Fabrikant, Esq.
East Brunswick, NJ
(732) 659-4109
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