Exploring Modifications of Court Orders
In New Jersey, the concept of modification involves requesting a change to the terms of an existing court order or judgment. Courts may be asked to modify an order at any time prior to the filing of an appeal or the completion of a sentence, whichever is later. After this time period has expired, relief from the judgment or order may still be available, so long as good cause exists.
There are two common grounds for modification: (1) a change in circumstances; and (2) mutual consent. A change in circumstances must have occurred since the entry date of the underlying final order relied upon for modification. Moreover, the change in circumstances must be substantial enough to have the level of impact on a party required for this remedy. The party seeking modification must notify the court of any changes that might affect rights and obligations, including those impacting child support , alimony, visitation, and the division of property. Mutual consent only occurs if the parties reach an agreement stipulating the way an order should be modified. In such cases, each party must sign off on the proposed agreement. For an agreement to be enforced, it must be fair and equitable, and deemed by the court to be in the best interest of the parties.
The grounds for a motion for modification include: Since a motion for modification of a court order or judgment preserves the nature of an action related to family law, it is not subject to mediation or arbitration. Similarly, discovery is not allowed, except that limited financial disclosures are permitted when there is a claimed changed circumstance related to child or spousal support. Still, if permission is granted by the court, discovery is allowed for the modification of a child-custody/parenting-time order.
Commonly Sought Modifications
Common reasons that people seek modification of a Court order in NJ include changes in financial circumstances, changes in custody or parenting time arrangements, relocation, and change to in residential provision.
Financial circumstances can affect the ability to adhere to the terms of child support, alimony, or equitable distribution. Job loss, person injury, sudden illness or death of a party or dependent can all result in a situation where one party cannot maintain the terms of their order. There is a very specific legal test to determine what constitutes a "substantial change" in financial circumstances to allow for a modification to occur.
Custody and parenting time orders can be changed when there is a significant change in circumstances that would affect the best interest of the child. There is a very concise 2 prong test that must be satisfied in order to properly file an application for modification:
Substantial Change of Circumstances: The person seeking out the application for a change in custody/parenting time must demonstrate that there has been a change in circumstances that warrants the modification. The significant change in circumstances must impact the best interests of the child. Examples of a change in circumstances may be, but are not limited to, change of caregiver, living environment, dates and times of activities, or school schedule.
Best Interests of the Child: Once the applicant has satisfied the first prong, they must now show that it is in the best interest of the child to change the existing order. The Court will look at all factors surrounding the best interest of the child, including, but not limited to:
Relocation is governed by the case of Baures v. Lewis, 167 NJ 91 (2001). The relocation statute is contained in N.J.S.A. 9:2-4 and was adopted to balance the interests of the custodial parents who wish to relocate following dissolution and the non-custodial parents’ interest in maintaining the parent-child relationships that were established by the Court at dissolution. If it is a parent seeking to relocate a child out of the State of New Jersey, then this statute will apply. However, in the event of a person seeking to relocate within the State of New Jersey, then the parties will use the Beal v. Beal, 377 N.J. Super. 130 (App. Div. 2005) test. The same factors are used in both statutes, but the standard of proof is different. In the Baures case, the statute contains a presumption that favors the moving parent as long as there is a genuine reason for the move. In Beal, it is the parent that is resisting the move, who bears the burden of proof. In either instance, it is a thorough analysis of the facts on a case by case basis, that will result in the Court’s decision.
Application Procedure
Depending on the type of order in question, an application to modify a court order in NJ may be sent to the court via motion or petition. A motion is the preferred method for most matters, as it allows you to send the request to the court and then schedule a case management conference before the motion judge, who will essentially decide whether or not your motion will be granted. A petition, on the other hand, is primarily used for modification of a divorce settlement agreement (Judgment of Dissolution of Marriage) or a divorce decree or judgment. In either case, the filing procedures are the same and you will need to refer to the online rules for the specific court and/or court division in which you wish to file your application. Generally, you will need to submit: The process for filing an application is very similar to a petition or motion used to request an award of, or modification to, child custody and parenting time. In most cases, application by petition will be made to the Family Part, with a corresponding writ for filing in the Civil Part. Any documents related to a support order, such as a child support order, alimony order, or student loan payment order, must go through the Child Support Division and include an appropriate "subject index number." You will first need to obtain and file a Notice of Motion to Apply to Modify a Court Order Pursuant to N.J.S.A. 4:1B-11. In order to properly serve the required notice to others, you will need to file a Certification of Notification to the Division of Legal Services and Docketing. Once this has been done, you are required to provide all parties and agencies with a copy of the motion, attached certification, and certification of notification (actually, you are supposed to fax it to the Department of Human Services, Office of Child Support, if applicable). After that, you will file a notice of motion and proctor’s certification of notification, including any required exhibits. The motion will then be scheduled for a day the court appoints. If you choose to proceed by way of a petition, you will need to submit a petition; proposed form order; affidavit with all necessary information (the affidavit is essentially a checklist for the information that needs to be in the proposed order), and certification of notification to the Unified Court Schedule Administrator’s Office. There are additional requirements as necessary based on the exact nature of the order at issue so you will need to conform your application to the circumstances.
Legal Standards and Criteria
Modification of a court order is not something that should be pursued lightly. In New Jersey, the legal requirements and criteria for approval of a modification request are extremely important and must be met in order for a court to grant such an application.
New Jersey Court have held that "there must have been changed circumstances, a changed factual circumstance, that came about since the prior order which justifies a change in the alimony order or child support order." Id. at *19, citing Lepis v. Lepis, 83 N.J. 139, 146 (1980). The party seeking the modification has the burden of demonstrating that such a substantial change has taken place since the original entry of the order or judgment in question. Bodner v. Bodner, 429 N.J. Super. 77, 80 (App. Div. 2013).
Additionally, under New Jersey Rules Governing the Courts Rule 5:5-4(a), "[u]pon application by any party… the court may permit any proposed change in the form of orders for alimony or child support, or both, by entry of an order upon consent of the parties, without a change in circumstances." It follows, then, that if a motion to modify alimony or child support is brought before the court it must be based on changed circumstances. Id. (citing R. 5:5-4(a)).
To show a substantial change in circumstances, the party applying for modification must meet a threshold showing of a "change in circumstances that significantly impairs his or her ability to support the family consistent with its previous lifestyle," before it may even be considered whether the application will be granted. Bodner, supra, at *22 (citing Lepis v. Lepis, 83 N.J. 139, 146 (1980).
Role of Attorney
Legal assistance is essential when pursuing a court order modification in New Jersey. Not only are such matters frequently confusing and complicated, but mistakes at the outset or during the initial filing process can be detrimental to the overall outcome of any given case. Without proper legal direction from the outset, many individuals may falter throughout the modification request process, preventing them from achieving their desired modification objectives. When working with an attorney on a modification request, it is imperative that individuals consult with a legal professional that not only specializes in divorce and family law matters, but is also well-versed in post-judgment modification proceedings as well. For example, if a divorce agreement includes provisions pertaining to child custody, parenting time, spousal support, child support, or alimony, a lawyer must understand not only the potential issues at hand within the modification request petition, but also the respective underlying ordinances, statutes, and/or other precedent, such as published opinions or unpublished decisions . In short, the more knowledgeable and experienced a legal professional on family law matters in New Jersey, the better the representation. Moreover, throughout the modification process, a lawyer can provide direction and legal advice pertaining to what steps an individual must take. This entails providing guidance on whether to file a motion of certification, order to show cause, complaint for emancipation, or petition for removal. Furthermore, with the counsel of an experienced NJ family law attorney, individuals can ascertain whether they will be required to attend mediation and/or a Case Information Statement (CIS). If the case proceeds to Court proceedings, a lawyer can further guide individuals in terms of what information they must provide to the Court, as well as how to best present their respective situations in the most effective manner possible.
Possible Objections and How to Address Them
Potential challenges when trying to get a court order modified include a lack of substantial change in circumstances, a showing of intentional non-compliance or bad-faith actions on the part of the plaintiff, and undue hardship that may have been suffered by the defendant or children. It is easy to understand that if a payor, for example, makes $100,000 per year and was not subject to serious under-employment at the time of the order, and later makes the same amount with no issues the Court may not find modification appropriate.
Similarly, the courts will always try to ensure you have given the other party the opportunity to comply with the terms of the order. In a creative argument, the superior court advised that whether the party to be held in contempt being out of the state as well as living with a non-complying ex-spouse while also deriving financial benefit from the other ex-spouse could result in a modification of the terms of the order. So even though the contempt was not found, it seems the court will not allow the other party to continue deriving a "double benefit" in continuing a relationship with the ex-spouse and her money.
Mere failure to comply with the order, without more, is not sufficient to obtain modifications in whole or in part, including the requirement to pay statutory child support guidelines. It is always important to remember that the issue of an inability to pay, most importantly for parties with disregarded U.S. income, will still require the defendant to support their position with calculation and theory. "In determining support obligations, the Court shall apply the case law and guidelines promulgated by the Administrative Office of the Courts."
While court orders are specifically enforceable, modification motions act like a whole new case – that is, you will be required to show your proof and support your position with evidence. For a motion to serve, file, and notice to be perfected and reviewed costs approximately $1,300. It is not always cost-effective or practical to pursue the other parent if they are not adhering to the terms of the order. The help of an attorney can help you to strategize a way to be legitimately heard while reducing costs.
The ever-present issues of the "imputed parent"-i.e., a parent who has a lamentable job history and regularly works "under the table" will aid in those support motives when the parent cannot support their needs and are instead being supported by the State will always make it difficult to make enough of a showing of true substantial change of circumstances.
FAQs
Q: How long does the modification process take?
A: The process for modification of an existing court order in New Jersey starts with filing of a motion, scheduling and attending the case management conference. These are typically scheduled about 4-6 weeks apart. After all discovery is complete you will receive a date for your family court trial. These can also can take anywhere from 4-8 weeks to schedule. Thus, a minimum of 2-3 months is necessary before you will get to trial to provide the court with the facts that you need to support your requested modification of the existing court order.
Q: How much will it cost to modify a court order?
A: In addition to your attorney’s fees, you may incur additional costs for expert evaluations, trial preparation, and expert testimony, The costs associated with the modification will depend on a variety of factors, including the complexity of your case and whether your case can be resolved through settlement or will require a trial . A simple modification in which the parties agree to the revised support amount may incur attorney’s fees of $2,000.00-$2,500.00. An expert retainer for a vocational, business or financial expert may cost anywhere from $1,500.00-$4,500.00. A minimal trial will incur attorney time totaling anywhere from 10-12 hours at the rate of your attorney.
Q: What are the possible outcomes of my modification request?
A: Every modification matter is different. However, the most common outcome is a voluntary modification agreement by and between the parties. The parties agree to the change in the matter of child support, the reduction in the alimony amount, or a party receiving the job search assistance they previously sought. The second most common outcome is an involuntary change of the original order resulting from a judge’s opinion after trial. Finally, the least common result would be a total denial of the modification request.