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April 2014 Archives

New Jersey Family Law and Divorce Case Law Review--April 21-25, 2014

Wainwright v. Sowanick, Appellate Division, April 21, 2014 (Unpublished Decision): The Appellate Court reversed the trial court's denial of the Defendant's application for a reduction in his child support obligation based upon a change in circumstances, finding that a precipitous decline in earnings over a four year period, despite the settlement agreement being finalized in the middle of the four year decline period, was sufficient to satisfy the Defendant's burden of making a prima facie showing of a permanent and substantial change in circumstances. The Court stressed, however, that the finding did not guarantee a reduction in the child support, as once discovery was completed the ultimate determination of whether a change in circumstances existed which warranted a reduction in the child support would depend upon the specific facts surrounding (a) the Defendant's current earnings and ability to earn at a greater rate; (b) the presumptions and basis for setting the support award in the settlement agreement; and (c) the assets available to the Defendant to pay the support despite his reduced earnings. The case makes clear, therefore, that there is a significant difference between satisfying the initial burden of a change in circumstances application, which results in a more detailed analysis of the facts and circumstances of the original agreement and the current financial situation, and actually recalculating support obligations.

EQUITABLE DISTRIBUTION OF PENSION INCIDENT TO A DIVORCE

One of the axioms of a divorce is the belief that all assets owned by either party are divided 50/50. Technically speaking, while a 50/50 split of assets is common, the law is clear that an "equitable" division of the parties' assets does not require a 50/50 division in all cases. Further, even with a 50/50 split, the exact method of accomplishing the division of an asset, especially a future interest, can vary.