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Q&A with Attorney David Simmons on Modification of Child Support during COVID-19

Jobless man sitting on stairs wondering how he's going to pay child support.

I Owe Child Support, But I’ve Just Lost My Job Due To The Coronavirus. What Do I Do?

In these unprecedented times, few things about the future are known for sure. What seems to be universally understood is that right now millions of Americans have lost their sources of income due to the economic impact of COVID-19. As we continue to deal with the effects of the crisis, some individuals who have monthly child support obligations may find themselves without the ability to pay the amount owed. So, what can people do? Family Law Attorney David Simmons breaks it down.

1. Communication Is Key

If you have lost your job due to COVID-19, you will likely need to share that information with your attorney and your ex as soon as possible. Initiating a conversation about your layoff is a better way to address the issue than choosing to just not send a payment on the date it is due. Having that conversation, as difficult as it may be, may save you a headache in the long run.

2. File A Motion To Modify Child Support

Once you have communicated with your ex about the possibility of not being able to pay child support, you will need to work with your attorney to file a motion to modify your child support obligation. Many child support obligations are established through court order, and as you likely know, court orders must be followed. Failure to comply with court orders could subject you to contempt motions and possibly to the consequences of being found in contempt of said order. In North Carolina, a person who pays child support pursuant to a court order cannot cease paying the established child support amount without court intervention (i.e. without asking the court first). In the case of established child support orders, court intervention can be sought through a motion to modify child support.

Filing a motion to modify is critically important as we continue to cope with the realities of COVID-19. For many, their ability to earn income could be impacted for months to come, and if you fail to file a motion to modify child support, a large amount of child support arrears could accrue as you wait to return to work. In North Carolina, child support payments become vested when they accrue. In other words, once a child support payment due date arrives, the person who is owed child support becomes entitled to that payment, and that payment amount cannot be changed or taken away from the person to whom it is owed, with limited exception.

As an example, suppose your child support obligation is $1,000.00 per month payable on the 1st of each month. Now suppose you were laid off on March 20, 2020. On April 1, 2020, the $1,000.00 child support payment you owed became vested, meaning the person to whom you owed the payment became entitled to its receipt. Now, let’s assume that you were unable to make the payment in April, and that you are unable to make the payments for the foreseeable future. With each passing month, the child support amount you owe continues to accrue and becomes vested.

Why is filing a Motion to Modify so important?

Let’s assume that shortly after you lost your job, your attorney immediately filed a motion to modify child support. When April 1, 2020 rolls around, you still owe the child support amount per the terms of your court order, however, when you have a hearing on your motion to modify child support, the court can retroactively modify the amount of child support you owe, taking your obligation down from $1,000.00 to a different amount as of the date you filed. Accordingly, the amount you owe could be significantly less than it would be if you did not file a Motion to Modify the support obligation.

3. If Your Child Support Is Made Pursuant To A Separation Agreement

If you pay child support pursuant to the terms of a separation agreement (not a court order), communicating with your child’s parent may be even more critical. Since your child support obligation is established by agreement, you can alter the terms by agreement without court action – today. If both parties and their attorneys can agree to new terms on a new child support amount, you can quickly arrive at a solution that is in your child’s best interest. This can be done outside of the courtroom, and many law offices are offering virtual services during COVID-19 to meet these needs.

But what if you and your ex cannot agree to a modification?

If you pay support by agreement and your child’s parent is unwilling to modify your support amount, you can work with your attorney to file an action to establish child support. When a valid separation agreement exists, and that agreement establishes a child support amount, there is a very important presumption that comes into play – courts called upon to enter child support orders between parties who have previously agreed to child support amounts in valid separation agreements will presume that the amount mutually agreed upon by the parents is a just and reasonable amount. In order to defeat this presumption, you must show the judge that the amount previously agreed to is no longer reasonable, considering the needs of your child or children for health, education, and maintenance, and the estates, earnings, standard of living of the child and the parties, and other facts of the particular case. Statistically speaking, presumptions are difficult to overcome. However, in these unprecedented times, we will likely see arguments made for why a child support obligation established via separation agreement prior to the pandemic needs to be changed based on the loss of income to one party.

4. Keep Records

As a family law attorney, I know the importance of keeping records. If you have been through a separation and divorce you are likely familiar with it as well. As we continue to weather COVID-19, record keeping will become increasingly more important. As it currently stands, many courtrooms throughout the country have been closed (except in the event of an emergency), and many legal matters have been put on hold unless they can be dealt with virtually. Like many of you, I am hopeful that we will return to normal, but we do not know when that will occur. As such, it is vital that parties involved in legal matters keep accurate records concerning events pertaining to their case. If you find yourself without the ability to pay support, keep records reflecting your separation from your former job. Apply for unemployment and keep records concerning your application. Document your efforts to secure new employment. Have or attempt to have conversations with your child’s parent regarding a modification of your support obligation and keep records of those conversations to the best of your ability.

In exchange for a reduced amount or temporary suspension of support, you could offer to extend the time period for which you would pay support. Or perhaps you might propose a repayment plan that would subsequently increase the amount you pay monthly in order to recapture the amounts you did not pay when you lost your employment. Keep track of the expenses that you are paying for yourself and for your children. By working together with your attorney and with the other parent, there are creative solutions that can be utilized during this time.

5. Call Your Lawyer, And If You Do Not Have One, Consult One Right Away

If you haven’t already done so, call an attorney today. If you have lost your job and you have not contacted your attorney about your job loss, I would encourage you to do so as soon as possible so you can begin to discuss next steps. Your lawyer knows the facts of your case, and the strategy and desired outcome for your matter. Your lawyer can work with you, and the attorney representing the other parent in order to come up with a solution. If you owe child support, have lost your job, and do not have an attorney, I encourage you to speak with an attorney right away. An attorney can offer advice based on your situation, and they can help you navigate the uncertainties of tomorrow.

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