United States: 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 questionnaire prior to the ability to pay hearing seeking to obtain information regarding the obligor's income and expenses. The court also directly addresses the obligor directly to ensure all the relevant information is before the Court.

As a result of the denial of an expert, plaintiff filed an emergent application with the Appellate Division challenging the trial court's order denying his request for the appointment of an expert on his behalf. The Appellate Division ultimately affirmed the trial court's order denying plaintiff's request providing a clear explanation in doing so.

The Appellate Court found that central to Pasqua's ruling was its concern when indigent litigants are forced to proceed without counsel, there is a high risk of wrongful incarceration but noted that plaintiff failed to show any "increased risk" by the denial of the appointment of an expert (finding it unlikely that the financial information for an indigent obligor would be so complex as to require expert analysis).

The Appellate Court was also clear in noting the purpose of an ability to pay hearing is not to decide what an obligor should pay but rather to determine whether an obligor's failure to pay "was excusable or willful, i.e., the obligor was able to pay and did not". Before a court may order the incarceration for non-payment, it must find that the parent was capable of providing the required support, but willfully refused to do so.

The court provides an illustrative example. Assume an obligor makes $100,000 per year and is ordered to pay weekly child support in the amount of $350.00 for two children. The obligor subsequently loses his or her job and now makes $60,000. As a result of the lower income, he or she has only been making payments of $250.00 instead of $350.00 per week. At an ability to pay hearing, it will not be determined whether $250.00 is the appropriate level of support, but rather what amount of the $350.00 the obligor was able to pay. If it is determined that the obligor paid what he was able to pay, no incarceration would be warranted despite the accrual of arrears and the fact that the amount of support remains unchanged.

In sum, even in the absence of a finding of indigence, in the Schochet case plaintiff was afforded legal counsel for the purposes of representing him at an ability to pay hearing. Plaintiff failed to show that the expert evidence he seeks is either necessary to avert an enhanced risk of improper incarceration or that same would even assist the trier of fact to evaluate same. As such, the court concluded that the appointment of experts was not constitutional required under the facts of this case.

There are two take-aways from his case. First, not every obligor will serve a stint in jail for the non-payment of support. Indeed, it likely very rare that your ex-spouse will do so. Second, the court's specific choice of words, "the appointment of experts was not constitutionally required under the facts of this case" is very telling. It appears the Court is not closing the door entirely on the possibility of appointing experts in these types of cases, but would only choose to do so in extraordinary circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions