Ability To Pay Hearings: A Refresher In The Limits Of Coercive Incarceration

"Why won't they throw him in jail? He is $10,000 in arrears in child support!" This is a sentiment many matrimonial practitioners frequently hear from their clients. Often times clients think that courts automatically throw an obligor spouse in jail for the non-payment of support. While not uncommon in other states, in truth, the use of coercive incarceration as a consequence to the non-payment of support in New Jersey is rarely utilized because often it is found that the obligor does not have an ability to pay.

In the case of Pasqua v. Council, the Supreme Court of New Jersey held that the "appointment of counsel to assist parents found to be indigent and facing incarceration at child enforcement hearings" was mandated by both the United States and New Jersey constitutions. 186 N.J. 127 (2006). Pasqua however, is silent as to other services that must be provided to an indigent obligor. In the recent published case (precedential) Schochet v. Schochet, plaintiff/obligor argued that Pasqua also requires the appointment of experts to testify at his ability to pay hearing.

The basic facts of Schochet are similar to many cases that have come before. Plaintiff/obligor was a portfolio manager at several hedge funds before the downturn in the economy. The year before the parties got divorced in 2012, plaintiff lost is high-paying job and asserted that since then, he has been unable to duplicate that level of income. The Judgment of Divorce entered in this matter required plaintiff to pay alimony at a rate of $1,500.00 per week and child support at a rate of $390.00 per week (later orders also required a payment of $50.00 per week towards arrears and increased child support based upon a cost of living adjustment).

Plaintiff was first incarcerated for non-payment of support in August 2013, however his incarceration was stayed by the Supreme Court in October 2013. Although the trial court denied him the right to proceed as indigent, counsel was appointed to represent him for the purpose of an ability to pay hearing and for future filings and hearings on any issues which may result in incarceration.

Prior to his ability to pay hearing, counsel for plaintiff requested that the County retain both an employability expert and accountant for the purposes of testifying as to plaintiff's employability and his current ability to pay child support. This request was denied by the County and the trial court. The trial court provides obligors with a specific...