With the turbulent job market in today’s economy, there is a good chance that many of us will be affected by lay-offs or other financial hardships. If you are a party to a child support obligation, you must be proactive in this situation. If your support obligation is set forth in a Court order, the obligation will continue to accrue in the event of a change in your employment status or income. That means that while your income or ability to pay support may be greatly reduced, your obligation continues to mount, based on the level of income you had at the time child support was determined. There are a couple of tips that can help you to protect yourself in this type of circumstance.
Verbal Agreements Offer Little Protection. If you have a current support obligation set forth in a Court Order, a verbal agreement between you and the recipient of support that he or she will ‘work with you’, ‘give you a break’ or even that ‘you don’t have to worry about it’ provides no legal protection to you whatsoever. That is because verbal agreements can and do not modify Court Orders. Do not rely on the other parent’s promise or statement relieving you of your obligation, even temporarily. The only way to protect yourself is to notify the Court of the change in your ability to pay. The best way to do this is by filing a Motion.
The Sooner the Better. Although it may take a few months to have a hearing on a child support modification proceeding, the timing of when you file your Motion is crucial. The reason is that at the hearing the Court may make any reduction in support retroactive. That means that the Court can order that the newly reduced level of child support apply backwards, going back to the date that the Motion was filed. The result of this retroactivity in many cases is that the payor will receive a credit for the months since filing the Motion that he or she over-paid support based on the new number. Courts can also determine retroactivity based on multiple changes of income, child care costs and health care costs while the case was pending. In some cases, to accurately determine how retroactivity would apply, Judge can do multiple support calculations over the period of time the Motion is pending. The Court has a great level of discretion when it comes to the issue of retroactivity, but the key is that a Motion must be timely filed in order to get any benefit from it.
Also, once an appropriate Motion has been filed the Court can do many things to provide some relief and protection, including temporarily suspend or reduce your child support obligation allowing you time to find a new job or other source of income.
Continue to Pay Support at the Present Amount. Until such a time as the support amount is modified, you must continue to pay the support amount as it was prior ordered as difficult as that may be. The reason for that is that the terms of the Court order requiring payment of support continue to control until they are modified by a subsequent order. If you are not paying support in accordance with the Order, you are not abiding by the terms of the Court’s order and could be found to be in contempt in a later proceeding. If you cannot afford to pay support at the current amount, at the very least, pay as much as you can and be prepared to document, with bank account statements and other financial records including bills, that you are unable to pay the Court the ordered amount. Keep in mind that even in the midst of a financial change or crisis, you still have an obligation to support your child.
To best protect yourself, you should contact an attorney and inquire about filing a Motion to Modify, Suspend or Abate the support obligation as soon as you learn of any change in your employment status or income. The worst thing you can do in this situation is to do nothing at all. If you do nothing at all and are not able to continue to meet your child support obligation, you could be found to be in contempt for a violation and you will be creating a support arrearage at the same time. The arrearage could later be enforced as a judgment against your property and accounts. There are many ways that we can help you through this situation and protect your interests. Please note that your failure to pay child support should not in any way affect your rights to have visitation and/or custody with your child.