This post originally ran on FG's Law Blog on February 6, 2021.
We are coming up on the one-year anniversary of when COVID-19 first began causing significant disruption to families, including families with separated or divorced parents. Many people suffered job losses and income reductions, while small business owners, independent contractors, and sole proprietors struggled to keep their companies afloat in the midst of a widespread financial crisis. For those individuals with alimony or child support obligations, this caused confusion and uncertainty with respect to how the courts would treat these unprecedented situations.
Since last year, the family courts have seen an uncharacteristic rise in the number of litigants seeking relief from their various financial obligations to their children or ex-spouses. Before the pandemic, during “normal” pre-COVID scenarios, someone wanting to lower their alimony or child support had to demonstrate a significant change to their financial circumstances. This subjective legal standard was already confusing for most litigants, since what felt “significant” to one person might seem trivial or minor to another. Thankfully, over the years the courts have addressed enough of these cases that more reliable criteria have emerged to help guide litigants who desire to lower their obligations. For example, courts routinely deny relief to litigants whose changed financial circumstances are temporary in nature. This is why it is inadvisable to rush to court in an attempt to lower your child support the day after you lose your job, unless you can verify that you will not be reemployed in the near future. Generally, judges want to see that litigants who lose their jobs have made ongoing, meaningful attempts to find replacement employment before the court will consider granting relief. Similarly, for individuals in fields where periodic bouts of unemployment are common, such as union employees, contract workers, or seasonal industries, the expectation is that the litigant will budget their paychecks on an annualized basis so there is enough money to pay support even in months when the worker is unemployed.
Courts also strictly scrutinize the cause of diminished income in litigants seeking to lower their support obligations. Someone who lost their job because their position was terminated or their employer downsized is going to face less scrutiny than someone who lost their job for cause, such as being fired for excessive absences or poor performance. In the latter situation, many judges will deny relief and will hold that party to the same income standard they had at their old job even if they are unemployed or earning less money now. This is referred to as “imputation” of income. Courts will also impute income to individuals who voluntarily elect to change jobs for personal reasons such as desiring a shorter commute or a better work-life balance.
It is under this complex and unpredictable legal rubric that folks have been rushing to court during the COVID-19 pandemic. While early on in the pandemic the courts were hesitant to grant lasting relief to litigants who suffered reduced incomes due to COVID, judges are now showing more leniency and accommodation in this regard. For example, whereas under pre-COVID standards a litigant would have to demonstrate several months’ worth of effort at securing new employment before a judge would consider lowering a support obligation, judges are more likely to grant immediate relief for a litigant who lost their job due to COVID. However, this does not mean that a litigant can simply expect their obligation to remain low indefinitely. Instead, some judges are granting interim relief—such as temporary support reductions—for one or two months and then requiring the parties to reconvene for a status update. During the status update, the courts will explore the litigant’s efforts at reemployment in light of the COVID-19 landscape. If a litigant can demonstrate that they have made good-faith efforts at finding new employment and have been unsuccessful, courts will oftentimes extend the reduced support for longer periods of time. Notwithstanding any short-term support reductions granted by the court, in both New Jersey and Pennsylvania alimony and child support are always subject to review based upon either the recipient or the obligor’s changed financial circumstances. This means that if a litigant was granted a support reduction but then obtains new employment at any time in the future, the recipient of support would be entitled to petition for an immediate recalculation of their alimony or child support and would not have to wait for the court to schedule a status proceeding. In addition, if a recipient of support believes that an obligor is not making legitimate attempts to find new employment, the support recipient can file an application to have the court analyze the obligor’s efforts more carefully.
The above might make it appear that if you lose your job due to COVID-19, you can relax and collect unemployment indefinitely while also enjoying the benefit of reduced support obligations. This is not necessarily the case. In addition to routinely reassessing the situation and critiquing a litigant’s reemployment efforts, some courts are only suspending enforcement of the original support obligation but allowing any deficits to accrue. For example, if a litigant owes $1,000 per month in child support and loses their job as a result of the pandemic, a judge could keep the obligation at $1,000 per month but allow the litigant to pay only $600 per month for a period of time. The unpaid $400 per month would accrue as what is called “arrears” and would eventually be paid to the recipient in the future. In addition, for temporary situations, judges can also review the assets of the obligor, such as savings and retirement accounts, and direct that support is paid from those assets as opposed to paying support from income. These types of arrangements allow the court to balance the equities between the recipient of support and the obligor, ensuring that at some point the recipient would be made whole for the losses. After all, in most situations, if an obligor pays less support than what is owed to the recipient, the recipient and any children suffer as well. Courts frequently try to create dynamic solutions that foster symmetry between two parties.
Another situation that has inundated the courts recently involves parents who have suffered changes to their income or employment due to increased childcare obligations. The majority of children are now participating in 100% virtual or hybrid school models. Especially for families with younger children, this has caused folks to make swift and sweeping adjustments to their schedules to ensure a parent is home to oversee a child’s “online” education. Even parents whose employers permit them to work from home have seen reductions in their income because it is not always possible to juggle full-time homeschooling responsibilities and full-time remote work. When a support recipient petitions the court for an increase in support from the obligor due to their reduced income in this situation, courts tend to be more hospitable, even though the decision to stop working is technically voluntary. In a pre-COVID environment, a litigant who stopped working unexpectedly because they suddenly decided that they wanted to be a stay-at-home caretaker would face suspicion from the court and would not be very successful. Now, courts are recognizing that having children home full-time when they would otherwise be in school 6-10 hours per day is the new normal, and adjustments have to be made in the spirit of fairness to the parent who takes on these new daytime educational responsibilities.
COVID-19 has brought on a slew of new challenges for the courts when it comes to issues involving alimony and child support. The old prevailing legal standards do not always yield just and equitable results in a COVID-19 environment. While there are no ideal solutions that would please everyone in these situations, the courts are doing as best as they can in the worst of times. If you are experiencing changes to your financial circumstances stemming from the COVID-19 pandemic, it is best to seek out a knowledgeable and reputable family law attorney to assess your unique situation and determine the best remedy for you. Although the path to relief might not always be simple and straightforward, relief can be possible.
As a shareholder and member of the firm’s Family Law Department, Angie Gambone concentrates her practice in the areas of complex family law, divorce and custody matters. She also focuses her practice on adoption, family formation and the family law needs of nontraditional and LGBT families. Angie can be reached at firstname.lastname@example.org or 856.382.2217.
To serve as a central repository of information and contributions from Flaster Greenberg attorneys on legal developments during the COVID-19 crisis, we have launched a COVID-19 Resource Page on our website. Feel free to check back frequently for Flaster Greenberg’s ongoing analyses of important legal updates that may affect you or your business.