For families already coping with family court orders, the COVID-19 pandemic – and the economic downturn it is causing – raises new and sometimes difficult-to-answer questions.
As their own job and income statuses are affected, many of our clients who have been through a divorce or non-dissolution matters are concerned about the feasibility of continuing to meet child and spousal support obligations while out of work or experiencing a significant downturn in business.
Indeed, in the world of family law, the most immediate ramification of the COVID-19 crisis will be an inevitable onslaught of applications by support obligors to reduce their support obligations and by support obligees to enforce such obligations.
What we know:
OBLIGATIONS REMAIN IN EFFECT
If you are obligated to pay support under a Court Order or Agreement, your obligation continues until otherwise modified by a subsequent Court Order or Agreement. In short, you must continue to pay until you are granted permission to reduce or suspend your payments.
ARREARS WILL ACCRUE
In virtually all jurisdictions, arrears will accrue while support goes unpaid, and the obligor will ultimately be required to pay what (s)he failed to pay while the obligation was ongoing. Eventually, sanctions may be issued for failure to pay support. These sanctions vary from state to state but often include the suspension of occupational licenses, drivers’ license, economic sanctions (e.g. fines) and even arrest.
FILING DATES CONTROL
The date on which you file for relief in the courts may be critical. In New Jersey, where my practice is based, relief is generally not awarded prior to the date on which a motion for modification of a support obligation is filed. For obligors, then, it is important to be aware of issues related to the timing of your application in order to obtain the maximum relief. By contrast, if you are a support obligee seeking enforcement of your application, a court will generally require the obligee in default to come current. With that said, the longer you wait to file an enforcement application, the longer you will wait to receive any kind of relief from the court.
What we don't know:
COURT ACCESS
Given that courts are largely closed in many jurisdictions and/or inaccessible for anything but emergencies, many are not even accepting new filings. The lack of access to the courts will have to be addressed on a state-by-state basis and changes day to day. Law360 has created an interactive state-by-state resource, updated regularly, with information on court closures and restrictions.
FINANCIAL RECORDS NEEDED
This is not a “known” yet because there hasn’t been an opportunity to test it, but it seems reasonable to assume that any judge assessing enforcement and/or modification application in the wake of COVID-19 will seek information regarding financial relief awarded to the modification applicant pursuant to the CARES Act.
We do know that unemployment income and other income and benefits paid through severance will be considered. Therefore, clients should anticipate that the major onslaught of these applications will occur several months from now, after unemployment and other benefits have run their courses and individuals who are not self-employed are no longer receiving even these benefits.
SPECIAL EXCEPTIONS?
The major unknown is whether the Family Courts – as courts of equity in many jurisdictions – will create any special exceptions or conditions for relief from support obligations requested due to the COVID-19 crisis, separate and apart from the standard by which they must normally adjudicate these requests. For example, in New Jersey, obligors are entitled to a reduction in support only if they can demonstrate a “continuing” (often interpreted as “permanent”) and “substantial” change of circumstances that warrants a reduction. The applicable statute sets forth specifics as to what might constitute “continuing” in the case of job loss or reduction in income. A New Jersey non-self-employed obligor must demonstrate a change of circumstances for at least 90 days and must provide proof regarding efforts to regain employment. Might those specific requirements be relaxed in recognition of the limitations people are facing to go out and shake hands and conduct job interviews? It is certainly plausible, but only time will tell.
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