One of the first questions you might ask if you find yourself in that unfortunate situation is: Do I have to continue to pay child support?
The short answer is yes. Courts only rarely suspend child support orders.
But can you modify your child support order so that you pay less?
Maybe.
While banks, insurers, and even landlords are offering ways to suspend or lower payments these days, courts tend to be much stricter. Usually, monthly child-support payments can only be altered if you can demonstrate a “material change” in your financial situation — and courts tend to be strict about that.
For instance, even though you might demonstrate a loss of income, courts will look at what your income potential might be. In California, for example, the statute governing child support states, “The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent’s income, consistent with the best interests of the children.”
The requirements vary from state to state. New Jersey, for instance, requires people seeking modifications to show that the change is unanticipated, substantial, and permanent.
The “unanticipated” part seems easy. But many of the newly unemployed are making at least as much money from expanded unemployment compensation as they were when they were working. So it may be difficult to show that the change is substantial until the money runs out later in the year.
Court Closures Add to the Problem
An added problem is that child support payments can only be changed by court order — and, for the most part, those courts are not currently open or are operating with abbreviated schedules due to coronavirus.
However, many courts allow people to file applications electronically. Family law practitioners say that even though courts may be closed, people should file applications now because when courts do open again an approved application may be retroactive to the date of filing.
It’s important to keep in mind, however, that you must keep paying the same amount of child support as stipulated in the order — even if you can’t get a hearing because the courts are closed. If you don’t, you may face penalties.
So, how tolerant might judges generally be in considering the plights of child-support payers who lost their jobs due to coronavirus?
Maybe the closest indicator would be the 2008 economic meltdown, which prompted a big spike in unemployment.
Attorney Valentina Shaknes recently told CNBC that, even then, courts were not forgiving in dealing with requests for support modifications.
“We kept hearing, ‘Go get another job,'” she said.
But she added that the severity of the pandemic, with its higher unemployment statistics, could bring different responses from courts.
“My expectation is there will be some [adjustment] of these obligations,” Shaknes said. “The judges are not going to be able to say, ‘Go get another job,’ when there are [millions] filing for unemployment.”
Work Out a New Plan With Your Ex?
Family-law practitioners say that it is a good idea to reach out to your ex-partner to work something out in the meantime, if possible. Drawing up a new payment plan by yourselves or with the help of your attorneys could be looked upon positively by a judge when the time comes for the court to act in issuing a modified payment plan.
If you lost your job due to the coronavirus and believe that you meet the requirements to file an application for a child-support modification, it’s important to take steps now. If you can negotiate with your ex, don’t waste time in examining that possibility. And file for a modification in your state court as soon as possible.
The whole procedure won’t be quick and it may not be easy, but it is doable. It may be wise to talk to an experienced family law attorney about your options.