Edward R. Weinstein, Esq.

What Can I Do If I Am Overpaying Support But My New Jersey Divorce Still Isn’t Over?

If you feel like you are overpaying support to your soon to be ex-spouse while your New Jersey divorce is still pending, you should immediately discuss the situation with your attorney. When my client’s ask me, “what are my chances of a reduction?” I walk them through the following legal analysis. Let’s explore.

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I first explain that we must file a motion for pendente lite relief. Specially, we shall seek temporary relief so that you (the spouse who is solely or mostly supporting the family during the divorce) may survive economically until the divorce is over. A judge of the Family Part of the Superior Court of New Jersey is not required to take testimony and have a trial regarding this issue. Instead, the Court relies upon Certifications (or Affidavits) along with evidence that is provided as exhibits to the application for the reduction of support. As an experienced divorce lawyer, I am always mindful that the Court’s primary focus is to maintain the “status quo” of the marriage until the divorce action has concluded.

Typically, temporary alimony and child support are paramount issues when one spouse has been (and continues to be) financially reliant upon the other. When a motion for pendente lite financial support is filed, the family law judge considers numerous factors such as the needs of the spouse who is financially dependent. The court then attempts to balance the ability of the supporting spouse to maintain the family’s lifestyle that existed during the marriage. The first step of this process for the court is to compare the expenses of the family along with the actual income of the supporting spouse. Then a temporary support amount shall be established in order to maintain the family’s household and other related bills with fairness to both parties. Certainly, for most middle-class families, this is very difficult to do.

Many folks wind up overpaying support in New Jersey because, just as the divorce is beginning, they made an agreement directly with their spouse without realizing that what they agreed to is inherently unfair. Fortunately, as New Jersey divorce law acknowledges that this is a temporary situation, the Court has the authority to revisit and modify monetary support either while the divorce is pending or at the final hearing (or trial).

If the spouse seeking to lower support is successful in lowering their temporary support payments, they may receive a “credit” for their overpayments, dating back to the filing of the Complaint for Divorce. On the other hand, the Court has the discretion to lower the support but without any credits to the spouse who overpaid, unless the issue is raised again at trial.

Only an expert in the field of divorce and family law can assist you in determining whether or not you are overpaying. Therefore, if you feel that you may be in this situation, I invite you to contact my law firm today so we may help you. Thank you.