Even if you heeded the warnings for the COVID-19 pandemic and felt prepared, most people still felt blind-sided by the swift after-effects that followed in the wake of shutdowns and stay-at-home orders across the country. Within days, many people were laid off, furloughed, or saw their income substantially cut. Many people worried about whether they would simply be able to be pay their rent. And for those paying or receiving child support, another question loomed. What happens next when the first of the month rolls around and a child support payment is due? Family law attorney Robin Lalley has some advice.
Communication Is Key
You’ve heard this before, but it bears repeating. When people withhold information, mistrust builds. From the perspective of the parent who is receiving child support, if the due date comes around and no payment is received, some may assume the other parent is taking advantage of a crisis.
For divorced, separated, or otherwise estranged parents, it is possible you aren’t privy to the other parent’s daily life. You may assume that the parent owing child support is already receiving unemployment or has funds saved up so that they can pay child support. You may assume they are still going to work. Instead of approaching the non-paying parent with patience and understanding, it can be easy to default to demanding payment in full immediately — or calling your attorney to talk about filing a motion for contempt (seeking the court to punish the other parent for violating a child support order).
If you are the parent who owes child support, starting a conversation about your current financial issues – even if this task seems daunting — is a better way to address the potential inability to pay child support rather than just not sending the payment and assuming the other parent will simply understand what is going on. Having that conversation, as difficult as it may be, may save you both a headache in the long run.
Consider The Short-Term, But Plan For The Long-Term
Another part of the discussion that should be taking place is about what the long-term looks like. Has unemployment been filed? Was the loss of employment permanent or temporary? Are there other job options during the pandemic in that parent’s field of work, even something temporary to offset the loss of income?
If the job loss is temporary and there are assurances of being rehired, then it may be best for both sides to come up with a short-term plan. That may include temporary suspension of child support, reduction in the amount, or a plan to pay back the difference in what is paid and what is owed once things get back to normal. One common thread in a crisis is that a little creativity likely goes a long way. Think outside the box as to how both sides’ needs can be met without causing more stress in an already stressful situation. And, remember, child support is intended to be a benefit for your children.
But what happens if you can’t reach an agreement with the other parent and you find yourself unable to pay child support? If you have a court order, you will need to file a motion to modify your child support obligation. Many child support obligations are established through a court order, and you do not get to choose if and when you follow a court order. Failure to comply with court orders could subject you to contempt motions and possibly to the consequences of being found in contempt of the court’s order (which can be as serious as jail time).
Generally, a person who pays child support pursuant to a court order cannot just stop paying child support amount without essentially asking the court’s permission first. Filing a motion to modify may be critically important as we continue to cope with our new reality as the result of COVID-19. For many, unemployment and loss of income could continue for months to come, and if you fail to file a motion to modify child support, a large amount of child support arrears (past due child support) could build up quickly. In many states, the child support payments will continue to add up and still be owed until a person actively seeks to stop them by filing a motion with the court. If that is true where you live, then time is of the essence in getting that motion filed once your income is impacted.
It may feel like addressing child support or filing a motion to modify child support is going too far, especially if you are hopeful that your employment may start back soon. If that’s the circumstance, then maybe you can pull together the funds to catch up on your payments or meet your monthly obligation. Or, pay what you can. That may even be easier in some cases if dealing with the other parent often proves confrontational.
Keep in mind that COVID-19 is a new situation for our entire country. Some businesses may not bounce back as quickly as others, and many may choose to voluntarily stay closed due to public health concerns. If you are not 100% confident that you will be re-employed soon, it is probably better to err on the side of caution and address the possibility you might not be able to pay child support long-term.
Regardless of whether you are receiving support or paying support, there are things you can do to protect yourself and prepare for any issues that may come up in the future. Memorializing any agreement is important, and under some circumstances, the agreement to temporarily modify child support may not be legally binding unless certain formalities are taken. Additionally, keeping records related to the child support matter is a wise way to be proactive.
For the parent receiving child support, document your efforts to gain information and work with the other parent regarding their support payments. For the parent who owes support and is facing a loss of income, keep track of your partial payments, applications for jobs, attempts to receive unemployment, and make your best efforts to keep the other parent informed in writing so those texts, emails, etc. can be used to show your good faith in resolving the issue.
Some of these things you can do on your own, such as communication and making efforts to work together and compromise. Some of these options require legal expertise and counsel. Whether you find yourself needing to take things to the next level by hiring an attorney to file a motion with the court or negotiate on your behalf, or if you are just doing the best you can on your own, take a step back to think about how the other parent is being affected and try to focus on the fact that we are all being impacted in some way during these extraordinary times.