Child Support During COVID-19

The shelter-in-place orders implemented to fight the spread of COVID-19 have created unprecedented changes. Many people have lost their jobs or seen a decrease in income. 
If you are going through a divorce and you have been laid off, furloughed or otherwise had a change in income due to the impact of COVID-19, you may need to seek a child support order, or if an order already exists, seek a modification. Courts generally will not modify support unless there has been a material change of circumstances since the prior order, but a legitimate decrease in either party’s financial circumstances may justify a change in the order. Here’s how to do it. 
Assess Your Options
By statute, your “first and principal obligation” is to support your minor children according to your circumstances and station in life. Until your current child support order either expires or it is replaced with a new order, it remains in effect. If you miss payments, you may accrue arrearages or be found liable for contempt, which may be punishable by fines and even jail time.   
If you have been laid off, it is important to assess whether there are reasonable opportunities for new employment based on your experience and marketable skills.  
There may be other material changes in your circumstances.  Have your expenses materially changed due to the pandemic? Do you have new insurance costs? With school closures, do you need to pay for child care? Has the custodial timeshare changed? Is one parent able to work remotely? Material changes in timeshare may justify increasing or decreasing the child support order.   
Whether modifying child support up or down, each parent’s income is considered. The court determines each party’s gross income by reviewing the party’s Income and Expense Declaration. The court considers  unemployment insurance benefits as income. 
Subject to the child’s best interests, the court may consider whether either parent’s earning capacity (a parent’s ability and opportunity to work) should be considered rather than actual income.  
Whether circumstances have sufficiently changed to warrant a modification is determined case bycase. The parent seeking the modification bears the burden of showing a change in circumstances warranting a modification of the existing order. Where the paying parent seeks a support reduction because he or she has lost his or her job, or otherwise suffered a reduction in earnings, that parent bears the burden of proving he or she lacks both the ability and the opportunity to earn. Likewise, the supported parent who seeks a support increase, based on the other parent’s imputed income, bears the burden of proving the other parent’s ability and opportunity to earn. 
Do Not Delay
Courts have discretion to modify child support orders retroactively.  Generally however, they cannot modify any support amounts that have already accrued before the filing date of the motion for modification.  It is essential not to delay in filing your request.  It is still possible to file papers seeking modification of support, despite the court’s limited operations. Although you may not receive a hearing date for several weeks or months, filing your motion as soon as possible will preserve your ability to request modification of support retroactive to the earliest possible date. 
If Possible, Communicate With the Other Parent 
If the parents reach temporary agreements, everyone benefits. Parents may agree on an alternate arrangement for child support during the pandemic. This is where transparency is key. Be upfront as to whether your job loss is temporary or permanent. The other parent may also have changed circumstances that affect child support. Whether or not you have already filed a motion seeking to modify support, you should draft a written stipulation to be approved and entered by the court, giving you a new support order without having to go back to court.     
If you believe your rights and obligations have been impacted by COVID-19, you should consult an attorney who will help you develop a plan to navigate your family through these uncertain times.

Maya Younes is an associate attorney with the trial law firm McManis Faulkner in San Jose. She may be reached at [email protected] or 408-279-8700.


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