In the week of March 28, 2020, a record 6.48 million people filed claims for unemployment benefits, many as a result of layoffs and business closings due to the Coronavirus. Did you or your coparent experience Coronavirus job loss? Are you wondering (or worried) about how this unexpected unemployment will affect your child support award?
Don’t worry, you aren’t alone. As the stay at home orders are extended, I have had more and more clients contact me about Coronavirus job loss and their support award each week. Most of the calls have been from my clients who pay support. However, I expect that I will start to receive calls from clients who aren’t getting their support because the other parent is no longer working.
Are you worried about how your child support may be affected by Coronavirus job loss? You aren’t alone. Even celebrities have been filing to lower their child support due to loss of work. Not sure what you should do? Should you file to modify the support order now or should you wait?
Don’t worry, I got you! Read on for my answers to your most frequently asked questions about child support when you or your coparent have experienced Coronavirus job loss.
What should you do if your Coronavirus job loss is temporary?
Were you or your coparent temporarily furloughed because of the stay at home orders? When your Coronavirus job loss is only temporary (i.e. a few months), you will need to evaluate whether it is worth going through the effort to modify your support obligation, particularly if you will need to do so through the courts.
What does this look like?
In general, if you are paying child support through the court system, you will need to file something to modify your support obligation. This presents a few challenges. First, some courts are closed and so filing this paperwork, and having it addressed quickly, may prove difficult. Second, if your Coronavirus job loss is truly temporary, is it worth hiring an attorney to help you file to modify? Maybe not. This is particularly true if the modification is going to be minimal.
However, if you are uncertain as to how long your temporary Coronavirus job loss is going to actually be, you may still want to file for a modification to preserve retroactivity. What do I mean by retroactivity? Let me explain.
In some states, the filing date is the date which the support order will be modified back to. So, even if you file the paperwork now but it isn’t addressed for a month or so, the order will be modified back (i.e. retroactive) to that filing date. This can give you some much needed (albeit belated) relief.
Still not sure if filing a petition to modify is worth your time if your Coronavirus job loss is temporary?
If you are still unsure, I suggest that you review your state’s child support calculations. These calculations can give you an estimate as to what your new award would be given your present income (if you have income from other sources) or unemployment benefits. Each state calculates support differently. It is important to know whether your temporary Coronavirus job loss will affect your support obligation before making the effort to file something.
In short, don’t waste your time if you aren’t going to get any significant financial relief from it. For example, is your order only going to decrease by $20? For some that is worth the time to file but for others not.
Also, make sure that you are filing for Coronavirus job loss unemployment benefits ASAP. It is taking a long time to process these claims due to the increase in filings. You are likely eligible for same even if your lay off is only for a short period of time. Don’t leave that money on the table!!
Can’t afford an attorney? Check out this site which provides a link to every state’s support calculations. However, if you are still not sure whether you should file to modify, I highly suggest contacting an attorney in your area for guidance. Paying for an initial consult to discuss this issue could likely be money well spent (or saved).
What should I do if my Coronavirus job loss is permanent?
If your Coronavirus job loss appears to be permanent or, has no actual end date like many lay offs do, you should probably file paperwork to modify your support obligation. Again, even if it takes a while to work its way through the court, you need to file those papers to have the order changed. The longer that you take to file, the longer you are paying support at a rate that you can’t afford.
However, remember that your children need to eat too. Therefore, it is still your responsibility to do everything that you can to find work to supplement this lost income. I know that they may sound harsh given the current uncertain economic and health climate, but it is not any harsher than the support office is going to be on you.
So what should you do to make your best case for a modification if your Coronavirus job loss is permanent?
Most importantly, make sure that you are doing all the you can to find alternate employment. Are grocery stores in your area hiring extra staff? Are there any online positions that you can apply for? Even if you are unable to get these jobs, the court will want to see that you tried.
Why is this so important?
In general, a court is not going to find that your support obligation is zero unless you are disabled. Similar to anytime that you are unemployed, the support office will want to see copies of job applications and correspondences with potential employers to confirm that you are doing all the you can to find work and pay your child support obligation during this period.
Also, if you have it, be ready to provide documentation from your previous employer indicating that you are out of work because of the Coronavirus. The more you can show that you looked for work and that your job loss is not your fault, the more likely your modification will be successful.
How does unemployment compensation affect child support?
Unemployment compensation is presently available for those that are experiencing Coronavirus job loss (either permanent or temporary). Are you or your coparent eligible for unemployment compensation because a Coronavirus job loss?
If so, it is important that you file as soon as possible. Why? The number of filings for benefits for Coronavirus job loss is presently 5 times what it normally is. That’s a lot! As such, there may be a delay in receipt of benefits. The sooner you file, the sooner you start getting money. It’s that simple.
Also, the sooner you know how much you will be receiving in benefits, the sooner you will know whether it is in your interest to file a paperwork to modify your support award due to Coronavirus job loss. As I said above, courts will often modify your award back to the filing date, not when you lost your job. So, delaying your filing for those Coronavirus job loss benefits could ultimately be delaying your own relief.
Remember, unemployment compensation is generally considered income available for support. Therefore, a court will consider what benefits you are eligible for due to Coronavirus job loss when determining your support obligation. Again, if they are going to consider it anyways, might as well actually be getting the money!
I am a business owner. What should I do if I experience Coronavirus job loss?
Determining the income for a business owner is tricky, even under normal circumstances. It’s even trickier when their income is affected by Coronavirus job loss Why? In general, when determining a business owner’s income for child support, the court will look at the business owner’s income for the entire year, not just one or two months.
Again, why? Well, depending on the industry, many business owners take minimal draws on a weekly or bi-weekly basis and then pay themselves distributions (which are generally much larger sums) on an annual or quarterly basis. Thus, looking at a small snapshot of income loss is generally not representative of how much money the business owner is going to make for the entire year. This is particularly true if the business does not have set schedules for those distributions.
So how does this apply to Coronavirus job loss?
It may be difficult to argue that your business income for the year will down because of Coronavirus job loss when the year is not yet completed. The other parent can always argue that you will make the money back up in the later months when the pandemic has subsided. While this argument may be speculative, it is also speculative to say that you will not, leaving the court with little guidance as to what to do.
So how do you present the strongest case possible for a modification due to Coronavirus job loss if you are a business owner? It is likely in your best interest to wait a at least a few months or, ideally, until the end of the year, to determine if filing for a support modification is right for you. As always, make sure to consult an attorney to discuss your specific circumstances.
If you are a small business owner, you may be eligible for certain loans to keep your business open during this time and supplement your Coronavirus job loss. If you plan on filing to modify support, it is probably a good idea to show the court that you have applied for these loans. Again, the court will want to see that you are doing everything you can to avoid income loss.
I have a health condition that has resulted in Coronavirus job loss. Can I file to modify my support?
A client presented me with this exact Coronavirus job loss scenario last week. He works in the healthcare industry but has a heart condition that would put him in the high risk group and at grave risk should he contract the Coronavirus. As such, he is not going to be working for three months until it is safe for him to return to the hospital. He can not work from home. Does this Coronavirus job loss scenario apply to you?
In order to modify your support under these Coronavirus job loss circumstances, I suggest that you do the following:
- See if you are eligible for short term disability or other short term medical leave benefits to supplement your lost income, at least in part;
- Get a letter from your physician stating why you can not work during the Coronavirus outbreak; and/or
- Obtain documentation from your employer as to your last date of work and, if applicable, that they do not want you to work at this time because of the health risk.
While this is all new and largely untested, I think that your request for modification is more likely to be successful if you can provide the court with some or all of the above. Again, the more that you can show that your Coronavirus job loss is not your fault and that you are doing everything you can to supplement your losses, the more likely that the court will modify your support award.
So what should you do if you experience Coronavirus job loss?
I’m not going to sugarcoat it, this is tough stuff. Usually, I can give you advice based on previous decisions by the courts. However, there are no previous decisions when it comes to Coronavirus job loss. We are all navigating uncharted territory. However, I suggest that if you do experience Coronavirus job loss that you do the following:
- Before filing for a modification due to Coronavirus job loss, first decide whether it is worth your time (and aggravation and legal fees) and actually make a significant impact on your support obligation;
- Keep documentation for all jobs applied to as well as any paperwork from your previous employer indicating why you were laid off;
- Make sure to file for unemployment benefits ASAP;
- If you can’t work during this time because of health issues, make sure you look into short term disability or other medical leave benefits;
- Apply for small business loans to supplement lost business income if eligible;
- Consult an attorney about whether a modification filing would be successful, particularly if you are a business owner that receives the majority of their income on a quarterly or annual basis; and/or
- Keep your co-parent up-to-date on what is going on and try to work with him or her to resolve this situation as much as possible.
While you don’t want to rush into filing something that will do more harm than good, you do want to procrastinate on this issue. So get your numbers together and consult an attorney if needed before making a decision. And keep checking back here for more Coronavirus-related divorce information. I promise I’ll keep providing it.
What’s next on the blog about the Coronavirus?
Did you miss my article about how the Coronavirus is affecting property division? If so, you can check it out here. Or, are you not sure if you are supposed to follow your custody order during this Pandemic? Spoiler alert: yes. Learn why here.
In a few weeks, the government should be mailing out (or direct depositing) the Coronavirus Stimulus Checks. This money presents some unique issues for divorced/separated persons. So, next week I’ll continue my look at how the Coronavirus is affecting the divorce world when I examine what to do with these monies. Who gets the check for the kids? Is the check income available for support? Are taxes owed on these monies? Don’t miss the answers!
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