Musico v. Musico: The court should consider the above-guideline child support agreement as part of its analysis in rendering an equitable result.
Musico v. Musico, 426 N.J. Super. 276 (Ch. Div. 2012). Opinion by L.R. Jones, J.S.C.
Issue: If parties who agree to an above-guideline level of child support in their divorce agreement and later experience a change in circumstances warranting a child support review, should the parties recalculate the child support by strictly applying New Jersey’s child support guidelines or should consideration be given to the prior above guideline agreement?
Holding: The court should consider the above-guideline child support agreement as part of its analysis in rendering an equitable result. When parties have previously negotiated and agreed upon a child support amount above the New Jersey child support guidelines and there is later a change in circumstances warranting a review and modification of the child support amount, fairness dictates that the parties should initially use the child support guidelines, but then consider the present payment amount and prior agreement to help the court to consider what the new child support figure should be, which may be above guidelines. Here, the payee spouse waived alimony in consideration of above-guideline support.The family courts are courts of fairness and equity. The court will look at the parties intentions in their agreements. A significant increase in parenting time is a substantial change of circumstances warranting a child support review. In addition to initially applying the child support guidelines to calculate the proper child support, the court must consider various factors set forth in N.J.S.A. 2A:34-23. Fairness dictates that the defendant pays an amount of child support above the guidelines.
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David M. Wildstein is a senior shareholder in the New Jersey law firm Wilentz, Goldman & Spitzer P.A., and chair of the firm’s Family Law Team. He has exclusively practiced family law for over 40 years, been a member of several New Jersey Supreme Court Committees that have shaped the rules and procedures for family law in this State, and lectures to lawyers and judges at the New Jersey Institute of Continuing Legal Education.
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