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Increase in Support Due to a Negative Change in Circumstance

If the recipient of spousal or child support experiences a substantial negative change in circumstance, can he or she apply to have support increased?

Michele E. D’Onofrio’s Answer:

It depends. Child support and alimony are treated differently by the Courts. Alimony is unlikely to increase in terms of duration. It is critical that a party review their Marital Settlement Agreement as to the specific language utilized. Having an experienced and knowledgeable attorney in the divorce process will ensure that the language in the Marital Settlement Agreement is clear and reflective of the desires of the parties.

If the payee experiences a permanent negative change, the payee can request an increase in child and spousal support and the support orders may be modified upon a prima facie showing of substantial changed circumstances. However, if the nature of the substantial negative change in circumstances is temporary in nature, such as a job loss, the support obligation is unlikely to change. The party seeking redress bears the burden of proof and needs to prove to the Court that they are unable to obtain employment at the same income level through documentary evidence such as job applications, rejections letters, etc. The payee must show good faith and diligent efforts to regain employment at the same income level. If the basis of the negative change in circumstances is medical, they bear the burden to prove that the situation is permanent and precludes the ability to earn at the same level of income.

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