If you’ve experienced job loss due to the spread of COVID-19 and the widespread public safety measures that have been put into effect across the country, you are not alone. According to the U.S. Department of Labor, unemployment claims reached approximately 281,000 last week – the highest level since in more than two years.
If you are one of the many people who have been laid off from work, your ability to pay child support and maintenance may be impacted, and you may be wondering what options you have available to you. First and foremost, it is advisable to comply with all existing child support obligations until your order changes. That being said, it may be possible to seek a child support modification after your COVID-19 layoff.
Generally speaking, to modify an existing child support obligation, you’ll need to be able to demonstrate “changed circumstances that are substantial and continuing.” Under existing law, if there is a less than 10% change in the amount of support due per month, that “shall be deemed not to be a substantial and continuing change of circumstances.”
Someone experiencing a reduction in earnings or total job loss due to the measures enacted to help slow the spread of COVID-19 may be able to demonstrate a substantial change in circumstances. The lack of clarity around how long people will be experiencing a reduction in hours or total job loss does raise the question as to whether the change experienced by someone in that situation is “continuing,” so as to support a request to modify the existing order.
During these uncertain times, it may be worth it to attempt to reach a negotiated agreement with your former spouse or co-parent to reduce your support obligation or temporarily suspend the obligation. Any such agreement should be signed by both parties and filed with the court. If an agreement cannot be reached and the threshold for filing a motion to modify has been reached, then you may need to consider filing a motion to modify your existing support obligation as soon as practicable. Filing a motion with the court will preserve arguments about modifying your support obligation back to the date the motion was filed. If your situation changes after a motion has been filed and your hours are restored or you are able to return to work at a similar or same rate of pay, the motion could be withdrawn.
When determining a party’s income for purposes of calculating a support obligation, the issue of voluntary unemployment or underemployment may surface. If a party is voluntarily unemployed or underemployed, that party’s income is to be calculated based on potential income. There are exceptions to using a party’s potential income for purposes of calculating the support obligation that are beyond the scope of this post.
In determining whether a party is voluntarily underemployed or unemployed, the courts generally look for evidence of shirking. The courts might look to see whether the party has failed to seek comparable employment, has turned down comparable employment, has made a career change in bad faith, or has otherwise purposefully sought to reduce his or her earning capacity in order to avoid support obligations.
A person experiencing a legitimate reduction in hours or total job loss who is doing the best they can to meet their existing support obligations, address their present inability to pay, and find alternate employment will increase their chances of successfully defending against claims of voluntary unemployment or underemployment, or shirking.
There is no one-size-fits-all solution to this issue. If you have questions about your specific scenario, we are happy to assist in helping you navigate this crisis. Call The Harris Law Firm today at (303) 622-5502.