By Amanda Singer
As of April 24, 2020, the US has lost 26.5 million jobs over the past five weeks, putting the real unemployment rate at over 20%, the highest level since 1934. While these numbers certainly sound and are staggering, we know that for those of you who may have lost your job who is currently paying child and/or spousal support to someone, it brings up a whole other host of issues for you to worry about. Furthermore, for those who still have their jobs, many more are experiencing a decrease in income, whether because of salary reductions, fewer hours, or loss of business income. All of this means that the income used to calculate your support obligations may be vastly inaccurate now, and you may not be able to make those payments without putting yourself in severe financial hardship.
At this time, many of the family courts around the country and certainly here in California and San Diego, in particular, are closed, and no hearings are being heard or orders being made. San Diego courts are closed at least through April 30 with the understanding through communication from the courts that they will probably not reopen until at least May 25. If this is true, it means that the courts will have been closed for ten weeks before reopening and even starting to make orders again. I can only imagine how backed up things are going to be, especially when some sort of social distancing will most likely still be required. With the courts closed, it not only means that your previous court order remains in effect unless you can agree with your spouse to modify but for a while also provided issues of retroactivity.
If you have lost your job or had a reduction in income, you can and should always reach out to your ex-spouse/co-parent or their attorney and see if they’d be willing to work with you on this. Online mediation is always an option during these times. Working with a mediator, especially one who is also a Certified Divorce Financial Analyst (CDFA), can allow you to modify your support order and put in writing what those agreements are to be filed once the courts reopen. These could be temporary orders only in effect for a specified period of time if you’ve been furloughed or anticipate your income to rebound soon or a more permanent order that would remain in effect until you find a new job and support is then modified based on your new income.
In addition to not being able to have your case heard at this time, the issue of retroactivity has been raised for a while now. Retroactivity in family law means that if you file a Request for Order (RFO) to modify your support order when the hearing is finally heard (which could have been many months later), the judge could order the new support order retroactive to the date you had filed your RFO. However, because the courts are closed, no one has been able to file any RFOs for weeks now. On April 19, 2020, the California Judicial Council approved Circulating orders (CO) 20-07: Family Law: Emergency Rule Regarding Effective Date to Modify Support in Response to COVID-19 Pandemic (Adopt Cal. Rules of Court, emergency rule 13). In summary, it allows parties to proceed with serving and filing requests to modify support in family law cases during this state of emergency. The rule allows the court to make an order modifying support effective to the date an unfiled request to modify support was mailed or otherwise served on the other party (and electronic service is also currently allowed) with the moving party still required to re-serve the opposing party after the request has been filed with the court. What this means for you is that if you need to request a modification to support even though you can’t file it, you’ll want to complete and serve a request to modify support so you can retain your retroactivity. However, this doesn’t change the fact that you need to continue paying what is ordered of you until you can get a hearing, so trying to mediate the issue will undoubtedly allow for a much quicker resolution.
One thing to keep in mind is if you have filed for unemployment, though, you do need to consider what amount you’re receiving because unemployment income is still considered income for support purposes. And in some situations, with the additional $600 per week from the Federal stimulus bill, your income could be a bit higher than it was before, so knowing what that will look like can help with your negotiations.
If you are on the other side of this where your ex-spouse or co-parent has lost their job and needs to modify support, while that may be difficult for you as well understanding the position we’re all in at this time. At least trying to work with them an go a long way to your relationship moving forward. While I’m not advocating for you to put yourself in any financial harm, I would advise everyone to look at their budgets at this time and see where you can cut. While it might be difficult that your child(ren) are home all day, does that mean that daycare, after school, or even private school costs are reduced, which allows you to need less support?
Any way that we can work together is only better for everyone. If you have lost your job and need to modify your child support and/or spousal support during this time, contact us, and one of our mediators can help.