Arndt, Sutak & Miceli, LLC

Covid affected my job and I can’t keep paying support. What can I do?

A very common complaint and question we are hearing right now is related to the ability to continue to pay child support because of coronavirus. There is no doubt that many businesses have closed and even more jobs have been impacted leading many to wonder what affect this would have on child support payments.

I just received such a call from a prior client who I represented in his divorce a number of years ago. The parent had since remarried and had a child with the new spouse along with the child from the first marriage. Although the parent was lucky enough to still be employed and still working, the parent’s income had been dramatically reduced due to the impact of COVID-19.

Like many of the people who call our office, this parent sounded stressed and trapped. Between medical insurance, cut hours, and having more mouths to feed, it is not a surprise that many people feel this way. This client called desperately hoping we could provide from relief from his financial obligations.

In order to understand whether you are entitled to a change in child support, it is important to know that child support payments are calculated using an algorithm where very specific financial information is input and an amount of proposed child support is calculated. This calculation is known as New Jersey Child Support Guidelines calculation. Unlike some states which merely require the non-custodial parent to pay a percentage of their income in support, New Jersey considers a number of factors in fashioning child support. This includes income information and number of overnights with the child(ren). It begins with looking at each parents’ income from every source, including but not limited to salaries, bonuses, commissions and tips. In more rare cases, the Court will also look at whether either parent has unearned income from dividends, interest, stocks or even income from rental properties. Income also includes Social Security and Veteran’s benefits, retirement or pension payments, and even severance pay.

A very common question is whether a parent’s expenses should reduce child support. In New Jersey, there are some deductions that reduce a parent’s income for child support purposes or otherwise impact the child support obligation. Specifically, each parent is given a deduction for the taxes paid and any mandatory union dues or mandatory retirement contributions. Also, each parent is given “credit” in the calculation for the amount paid for the insurance premiums paid for the children by each parent. The guidelines also allow for costs for work related childcare to be included in the guidelines.

It is also important to understand that while only one parent may be sending money to the other parent, both parents have a child support obligation to their child(ren). {The Parent of Primary Residence or PPR typically pays their share of support directly by way of rent, utilities, food expenses, clothing expenses, etc. so typically no money is paid from that Parent to the Parent of Alternate Residence (PAR)- though this is not always the case.}

Once child support has been ordered in New Jersey, there are only three ways for support to be changed. 1) A child is deemed emancipated; 2) By agreement of the parties (consent); or 3) By proving to the Court there has been a “substantial change in their financial circumstances” that would require child support to be recalculated. Said another way, a parent must show that they do not have the ability to continue to pay this support (or that the other party has a better ability to pay their share of child support) by providing proof that they lost their employment, had their salary reduced, developed an illness or injury that leaves them unable to work and/or retirement. However, this determination is made on a case-by-case basis depending on the facts surrounding your situation. For example, most Courts will not modify child support for someone who lost their job merely a week prior.

Thankfully, for my prior client, the fact that a new child had been born, and who is equally entitled to share in the benefit of my client’s income, is enough to warrant that his child support be recalculated. Having a new dependent can be considered a substantial change in circumstances and can reduce child support for the “other dependent deduction.” For more information related to the ODD, look for our upcoming blog regarding child support calculations.

So how does COVID affect child support?

If a parent cannot keep paying child support due to financial pressures caused by COVID, they should not simply stop paying and assume that payments will be waived. Failing to pay child support can lead to severe repercussions. A judge can find a parent in contempt of court based on missed payments and the parent can face sanctions such as passport restrictions and even jail time in extreme cases. Child support debt can affect a parent’s finances for years, especially because it cannot be discharged in a Chapter 7 bankruptcy.

We recommend that anyone feeling the financial strain of child support obligation due to COVID should attempt to work out an agreement with the other parent for a temporary modification, which must be submitted to the court for approval. This agreement only becomes truly enforceable when approved by the Judge, and if your case is monitored by Probation, will not reflect any agreement until approved by the Court. If it is not possible to reach an agreement, the parent will have to petition the Court to order a temporary modification. This application or motion will require proof of the reduction in income, and likely proof of attempts to secure employment to earn the prior income. To be clear, the Court wants to see that the parent is making every effort to meet the financial obligation for the child before seeking assistance from the Court. A judge will review the parent’s financial situation in detail, including their income, assets, expenses, and debts, before deciding whether a modification is warranted.

Despite what many people believe, the family courts in New Jersey are open. Hearings in many counties are being conducted virtually through video conferences and over the phone and the logistics of filing applications and motions for modifications have changed. Since the Court Rules state that child support can only be modified back to the date these applications are filed, it is imperative that you speak to an experienced family law attorney to determine if your case is ready to be filed, or you could miss valuable time and money.

Contact us today at 732-867-8894 to discuss your economic status and whether a request for a modification is right for you.

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