The world has been facing a public health crisis that has caused significant economic changes and uncertainty. In the first two quarters of the year, families that are both intact and separated are facing increasing financial problems and struggles. More so for the latter, if one parent is obligated by the court to pay child support. But, with the ongoing pandemic, are there laws in place that allow for modification of child support?
Touchstone Family Law founder Leigh Sellers explores the process for applying to have child support recalculated and modified, with an emphasis on the adverse effects of the COVID-19 pandemic. Leigh discusses the five areas that impact the decision, including significant changes in income sources, cost, and availability of health insurance and childcare. 3:08 If you want the modification, you need to ask, so it is imperative that you speak with your attorney and ex-spouse as soon as possible. 7:33
Leigh also describes how the process for requesting changes will be different if you have a court order versus an agreement or contract with the other parent. In the latter case, the court will be focused more on a child’s needs rather than changes in circumstances, so modifying such agreements may be more challenging. 09:36
And because of COVID-19, courts not only have an increasing backlog of cases, they are not attending to non-emergency matters at this point. With that in mind, it may be beneficial to explore other options that can avoid a lengthy legal process. 11:21 Alternative dispute resolutions including mediation, arbitration, and a collaborative approach are becoming exponentially more popular in light of the pandemic to develop short and long-term solutions. 13:18
Ultimately, it’s important that you seek legal counsel if and when you feel it has become necessary to modify the terms of your child support order or agreement. As you consider your options, you can get prepared by gathering necessary documents, figures, and other required information for your case. 14:37
The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team at http://www.TouchstoneFamilyLaw.com
[spp-transcript]Intro: 00:01 Hello there. Going through a divorce? Considering one? Sorry to hear that. But here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place, a new world, really, with its own rules, its own expectations, and in many ways its own language. But don’t worry. You have a knowledgeable guide along the way; a family law attorney with three decades of experience under her belt. Now, here she is, your host and guide, Leigh Sellers.
Leigh Sellers: 00:38 Hi, everyone. Thanks for tuning into another episode of Welcome to Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law. In this episode, I’ll be answering another question that many newcomers to Splitsville have. Can I get my child support changed due to COVID-19?
Leigh Sellers: 01:00 Let’s dive in. Right now, we’re all facing a lot of economic uncertainty and the changes that have happened over the first two quarters of 2020 have put a lot of families at risk financially. This is occurring in intact families as we call it when everyone’s at the same home, as well as in families that are separated. When you’re already under an obligation to pay child support by court order or a separation agreement, any time there is a substantial change of circumstances, the party that’s paying or the party that’s receiving child support can apply to have that amount recalculated or changed. Where COVID-19 is increasing the interest in the subject because it’s had a broader financial impact than previous financial downturns, it really hasn’t changed the process because there’s already laws in place to take care of you when life throws you an economic curve ball.
Leigh Sellers: 02:17 If you were paying child support and you feel that you need to have it reduced, what the court is going to look at is a change of circumstances. What they’re going to look at is all of the change in circumstances. They’re going to look at any change in the payor’s income, change in the payee’s income, change in the cost or availability of health insurance, change in the cost or availability of childcare, and perhaps even the overnights that each parent is having with the child. Those are five distinct areas that impact the calculation of child support, and a change in one or all of them could make the overall support amount go down or up.
Leigh Sellers: 03:08 Let’s start with the payor’s income. If you’ve lost your job through no fault of your own, been furloughed or your employer has just cut down or your employer has instituted a mandatory reduction, there’s a lot of people in town that were able to keep their job, but only with the caveat that they had to reduce their income by 20% in some situations, if this is happening, it’s not your fault. You didn’t do anything to create the reduction in income. That’s certainly one of those substantial changes. You may have lost your health insurance and no longer be providing health insurance for your child if your job ended, yet that amount is calculated in your child support. Your daycare could have closed for months, or if you’re not working, you don’t need daycare anymore. That’s one of the things to look at. If the amount of time that the child or children are spending with each other has changed again because of COVID, perhaps there’s a health crisis in one house that’s made a change, or a sensitivity in one house that’s made a change, or travel has become difficult if the two parents live far away, we can also be changing the number of overnights.
Leigh Sellers: 04:30 If the parent who’s receiving child support has lost their job or lost health insurance for the children, or lost the need or availability of childcare, you could have changes on that side as well.
Leigh Sellers: 04:43 The real issue we have with COVID that could be a little bit different from other economic downturns is how long is it going to last and how quickly might one or the other factors that has changed go back to normal. The first one would probably be the overnights. What you really have to do is you have to sit down and look at the total picture. You have to look at all of the circumstances. You’re really going to want to talk to an attorney and talk through everything.
Leigh Sellers: 05:18 One thing that’s important to remember about changing your child support is that when the child support payment’s due, it’s what they call it’s vested, which means you can’t go back and undo it. For every month that child support has been ordered to be paid, as each month passed, it’s considered due. It’s a done deal. You can’t file something that goes retroactive, before the date you filed the request, and says, “I would like my child support changed for the last three months.” It’s not allowed.
Leigh Sellers: 05:53 If you’ve had these major changes and you think that you need a reduction, you want to go ahead and file the petition for modification now and work it out later. By that, I mean if you haven’t asked, you’re not going to be able to get the relief. You need to ask now, and then do your analysis.
Leigh Sellers: 06:12 One of the things you do have to consider is if things are going to pop back to where they were before by the time you actually got to a court to look for a reduction, they’re not going to be able to reduce it going forward. What the law is looking for is sort of long range or longterm changes, not the type of just temporary blip.
Leigh Sellers: 06:38 For example, if your daycare closed and it was closed for eight weeks, but you still had to pay, you just paid a reduced amount, that may not be a large enough change to make the court go back and recalculate the entire child support because there is a reduced expense for a few months. If your income went down a slight amount lower than it normally was, that may also not be enough to modify the child support if things are going to go back to pre-COVID or pre-shutdown earnings.
Leigh Sellers: 06:50 There’s a lot of things that you need to consider when you’re going to attack this. It can feel overwhelming to look at all of those changes. Many of them might not have been within your control and you’ve had to scramble, but it’s important to remember that if you want this change, you need to ask. The court cannot go back and look later and forgive the debt. They may say that you didn’t violate the court order because it was beyond your control, but they’re still going to say you owe the money.
Leigh Sellers: 07:48 Likewise, if you’re a recipient of child support, you could have some of the same factors. You could need more money. Your income may have been reduced and you may need the person who’s paying to increase their child support. You really have to go through the same analysis.
Leigh Sellers: 08:03 What complicates things further is the court’s also looking at whether or not there’s a court order in place. In other words, you went and had a judge calculate your child support, or you went to court and had an agreement, but you still ended up having a judge sign your child support order. That’s a totally different situation than if you have an agreement or a contract with the other parent. In some states, you can have a contract that says, “This is what child support is going to be.” It sets forth all of the parameters and all of the expenses and the obligations. It often can cover more things than what a court order would because the law doesn’t authorize it. For example, college payments, or extracurricular, or car insurance for a teenager. Those are things that aren’t specifically ordered for court ordered child support because it’s more basic needs and basic necessities.
Leigh Sellers: 09:01 If you have an agreement, most agreements are going to have a provision in the agreement about modification. The parties are going to have anticipated that their needs might change or their expenses might change. They’re going to have built in rules for that situation. If you know that you had an agreement and it wasn’t signed off by a judge, you want to go get the document, read it, read it carefully, and look and see what provisions are in there to cover a situation where you might need to make a change. If there’s nothing in there that’s helpful, and you’re going to need to apply to the court to change, the rules are a little bit different if you’re trying to change child support that was in a contract because, at that point, the court is going to evaluate things differently. They’re going to look at what the children’s needs were at the time of the agreement, and they’re going to look at what the children’s needs are now. It’s much more driven by the children’s needs changing. While they will look at the income and the ability to pay, it’s much more focused on the children’s needs and a lot less focused on a change of circumstance. If the children’s needs haven’t changed, you might have a little more difficulty with that.
Leigh Sellers: 10:16 You really do want to first figure out where is your child support obligation coming from? Is it a court order or it’s an agreement? If you have a child support order and it’s older than three years old, you are by statute allowed to recalculate it every three years. If the child support amount is going to be higher or lower than 15% of what you’re paying, means it’s a 15% or more reduction or 15% or more increase, it will be changed. But that’s in court orders that are more than three years old. If you’re not sure, and it’s more than three years old, you may want to rerun the calculations just to see if the law would change it.
Leigh Sellers: 11:02 Remember that because child support can be modified in a change of circumstance, if things returned to normal, the court does have the power to go back and increase it again. Given the amount of effort that goes into these calculations or these changes, you may want to first approach the other spouse and see if there’s some way to mediate or come to some consensus on what changes need to be put in place and how long they might need to stay in place. If you can come up with an agreement for a short term change and enter it in writing and make it legally enforceable for that period of time, that’s probably going to be the most streamlined thing for you to do. Attorneys are really thinking about that with their clients. We don’t want to put clients in a position of having to go through court or a lengthy legal process, especially when money is tight enough for them to need to modify their child support.
Leigh Sellers: 12:04 We’re trying to help people come up with a short-term solution and give people time to see what the future is going to hold, really focus on what the necessities are, and set up a time to revisit the issue of child support in the next few months or the next quarter, or even at the end of the year and see how things have turned out for each family and for the expenses of the children. People are making a lot of changes right now, and it’s difficult to add this to your plate.
Leigh Sellers: 12:42 If you’re in a situation where you feel like your child support is just burdensome and you absolutely can’t pay it, or you’re not receiving enough child support to meet the needs for your children, do call an attorney or seek to have the court intervene by filing your motion. But what complicates things right now is that the courts have been closed for anything but non-emergency matters. We have a backlog for cases to be heard, so you might not have a judge be able to give you the relief that you need.
Leigh Sellers: 13:18 This is a great time to explore the other options that don’t force you to go in front of a judge. You want to look into collaborative law, mediation, or arbitration, or some form where you could self-determine your change in child support without having to go to the courts, because we fear that getting time in front of the judge is going to be more and more difficult as the backlog from the courts being closed for almost three months really creates an impossibility of case loads for the judges where they just don’t have enough time in a day or in a week to hear all of the cases that need to be heard. If you can’t work it out directly with the other parent, we do suggest that when you go to an attorney, you be prepared to look at a solution that doesn’t require a judge.
Leigh Sellers: 14:12 These have been very difficult times, and I know my office has been flooded with calls and concerns about doing what’s right for their children and preserving their assets and their income to be able to work this out for the long haul. We know that this is a challenging time and the attorneys are going to do everything that they can to help you out. We do think it’s important to seek counsel, but come prepared with all of your numbers, what your changes are, how they’ve impacted your life, and how the children’s needs have been impacted, because it’s going to be pretty critical.
Leigh Sellers: 14:49 There you have it. Another neighborhood of Splitsville explored. There’s still so much to learn here. I hope you’ll tune in to the next episode. While Splitsville is not a fun place to be, thankfully it is full of helpful people, valuable resources, and sound advice, If you know where to look. See you next time.
Outro: 15:11 The insights and views presented in Welcome to Splitsville are for general information purposes only, and should not be taken as legal advice for any individual case or situation, nor does tuning into this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at www.TouchstoneFamilyLaw.com.
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