In a New Jersey child custody dispute or request for modification, there may be several hard-fought points of contention. If the case goes to trial, the judge will weigh the facts and issue an order based on what they deem the most equitable outcome that is also in the best interests of the child. But another route – one many parents prefer because it gives them greater control – is a consent order.
A consent agreement is a voluntary, written, enforceable agreement between parties in a divorce. It has become increasingly common with the rise of mediation and collaborative divorce. A consent order is a judicial order that reflects the terms agreed to by the parties.
What our East Brunswick divorce lawyers must stress to clients entering a consent agreement is that they need to be absolutely sure the terms are acceptable for the foreseeable future. In general, if a New Jersey Superior Court judge has declared that both parties entered into the consent agreement voluntarily, it will be upheld. Consent agreements are binding by law, meaning courts will enforce them accordingly.
The only way to amend one is by filing a motion to modify or vacate the voluntary agreement. The court will only do this if you can prove a sufficient change in circumstances OR there is evidence the consent order is unconscionable or was obtained by duress, coercion, or fraud.
In other words, it is not entirely impossible to modify or even vacate a consent order, but it is quite difficult, and you need considerable proof.
Take the 2018 case of S.S. v. N.S. before the New jersey Court of Appeals. The couple in this case were married for 14 years and had two children prior to divorcing. As part of the marriage settlement agreement of their divorce, the husband (a specialty physician) was to pay the wife $12,000 in monthly alimony for eight years and $8,000 monthly for four years after that, plus $3,000 monthly per child. This was based on the husband’s average earnings in his practice (more than $500,000 annually) and the wife’s of about $35,000 a year. He was also ordered to cover the children’s medical expenses and 2/3 the cost of their extracurricular activities and courses. The child support payments were to be reviewed every three years.
Four years into this agreement, the father notified the mother his income had dipped substantially – to only about one-fifth of what it was before. The pair had a contentious relationship and trouble agreeing on changes but acquiesced to mediation to figure out what the doctor should continue to pay in support. The pair reached an agreement, and the court issued a consent order: Payments were reduced to $2,500 monthly per child and the mother would now be 100 percent responsible for covering the kids’ extracurricular expenses. These adjustments were to be reassessed after three years.
After three years, the mother sought mediation to reassess. In reviewing the records, the mother ascertained the father had earned an average of $600,000 annually over the prior three years. She didn’t have an accountant review these records, and the father insisted she’d interpreted them incorrectly. Her own income during that time had nearly tripled.
When mediation failed, the mother filed a motion to vacate the consent order, arguing the father fraudulently misrepresented his income to reduce his child support obligation. She sought to increase support payments to more than $9,300 monthly.
The trial court declined to vacate the consent order, finding the mother voluntarily entered it and was free at the time to refuse it if she felt it unfair. She argued the father lowered his income on paper through a series of deductions, but the judge concluded these were allowed and both parties knowingly and voluntarily accepted the terms. Her bid to increase child support was also denied, while the father’s request to have it reduced was granted. Mother argued the children’s needs had increased and she was facing financial hardship if the support payments were lowered. The judge denied this, concluding the mother was likely seeking compensation for the scheduled reduction of alimony rather than the children’s actual needs.
Mother appealed, but the appellate court affirmed, upholding the consent order and noting the substantial evidence on record.
If you have questions about entering a consent order, modifying one or vacating one altogether, it is imperative that you discuss it with an experienced New Jersey divorce lawyer who can help you effectively navigate the challenges.
Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential consultation.