Job security is a big issue in today’s economy. Everyone knows someone who has been laid off or forced into early retirement or otherwise terminated from his or her job. Many of these individuals are opting for new – and sometimes less lucrative – careers in other fields.
But let’s say one of these individuals happens to be legally obligated to pay you alimony and/or child support as a result of a divorce. Does this individual’s legal obligation to pay you support automatically change with the change in his or her career? Or with the resulting decrease in his or her income?
The answer to these questions is not necessarily. For ease of discussion, let’s say you are divorced from Harry, who pays you both alimony and child support. Harry was recently laid off from his job as a specialized computer technician where he was making $100,000. Rather than try to find re-employment in his field, Harry decides to take a job at a fast food restaurant making $20,000 per year. Shortly thereafter, Harry tells you that he can no longer afford to pay you alimony or child support.
Before Harry can legally reduce his alimony and child support payments to you, however, Harry must first show that the benefits he derives from his career change “substantially outweigh” the disadvantages to you.
A similar fact pattern was presented to the appellate court of New Jersey in the case of Storey v. Storey, 373 N.J.Super. 464 (App.Div. 2004). In that case, the court deemed certain factors relevant to the reasonableness and relative advantages of the former husband’s post-divorce career change, including:
- the reason for the career change (both the reasons for leaving prior employment and the reasons for selecting the new job);
- the disparity between prior and present earnings;
- efforts to find work at comparable pay;
- the extent to which the new career draws or builds upon education, skills and experience;
- the availability of work;
- the extent to which the new career offers opportunities for enhanced earnings in the future;
- age and health;
- the recipient’s need for financial support.
Thus, in our scenario, Harry must be able to show that his choice of a new and less lucrative career in the fast food world was reasonable based on the above factors. Using the same factors, Harry must show that the advantages he experienced as a result of his career change substantially outweigh the disadvantages to you and your children.
If Harry cannot make such a showing, then he will not be allowed to reduce his alimony and child support obligations to you unless he can prove that he is incapable of earning what he used to earn at his prior job, despite his background and experience. In other words, Harry must prove that he cannot get a job earning what he used to earn.
If he is able to do that, then Harry will most likely be permitted to reduce his support obligations to you – but only to the extent of his actual ability to earn an income. Harry may not be able to get a job earning $100,000 per year any more, but he may be able to get a job earning $50,000 per year. If Harry nevertheless chooses to remain underemployed at his fast food job earning only $20,000 year, then his reduced support obligations to you will reflect Harry’s ability to earn $50,000 per year as opposed to his actual income of $20,000.
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