In normal times, a child support or alimony-paying parent who experiences a substantial loss in income can file an appropriate application seeking a reduction in support. However, the coronavirus crisis has effectively frozen the scheduling, but not the filing, of new matters.
This lack of immediate access to the courts should not discourage child-support paying parents from taking some action following job loss. Best practices suggest that a child-support paying parent who is laid off should file a modification motion right away because in New Jersey, child support arrears can only be reduced or eliminated in very rare and narrow circumstances. Although judges have somewhat greater latitude to reduce alimony arrears, such relief is generally easier to achieve by individuals who file a motion to modify as permitted by our statute, NJSA 2A:34-23, after losing their job.
To the extent that electronic e-filing is available for new modification actions, this is likely to be the preferred filing method, but again, different counties may approach filing issues differently.
Addressing Layoffs and Job Loss with the Recipient Parent
Litigants should always be careful about what they say in text messages, emails and social media posts. Any statements made to the opposing party may be used as evidence in an upcoming hearing. Nevertheless, there may be a greater price to pay for support payors who fail to offer respectful, accurate information to the support recipient following a job loss. To the extent that the loss of child support or alimony could be financially catastrophic to the recipient, many judges expect support paying parties to act with decency, compassion and clarity by informing the recipient of the job loss and the impending financial difficulty.
The appropriate level of detail to share with a support recipient will vary from case to case. However, what almost never varies is the need for support-paying parents and former spouses to share this kind of difficult information with respect and compassion, even if the parties have had strained relations over the years. With the coronavirus crisis leaving judges uniquely powerless to influence most cases, it is likely that judges will pay close attention to how parents and former spouses behaved during the crisis, once regular hearings resume. A party who acts with decency and sensitivity towards the extremely difficult circumstances faced by the other party is far more likely to receive the benefit of the doubt from a judge in a future hearing.
In many instances, it will make sense for support-paying parents to inform recipients that they have to file a motion to modify because of the job loss in sympathetic terms.
What Happens if Child Support Was Deducted from the Payor’s Paycheck?
Many parents pay child support through “automated wage deduction” administered through the county’s probation department. If the support-paying parent is laid off or otherwise loses his or her job, probation-collected child support payments are likely to stop immediately. However, it is important for child support-paying parents to recognize that their child support obligation does not go away just because the probation department no longer has a paycheck to draw from. Child support arrears will continue to accrue for the parent – with continued exposure for contempt – until and unless a court orders a reduction.
Child support paying parents can generally only obtain a retroactive reduction in child support going back to the date the party served his or her modification motion on the recipient. This is why it is so important for child support paying parents to file a motion to modify immediately after losing their job. Although retroactive relief from child support is not automatically available going back to the date of the modification, the lack of immediate access to courthouses during the coronavirus crisis is likely to result in more judges ordering retroactive relief once courts re-open. Perhaps more importantly, parents who fail to file a modification motion may lose the opportunity to seek retroactive relief at all.
Are Unemployment Benefits Subject to Child Support?
The New Jersey Child Support Guidelines include unemployment benefits as a source of income from which child support can be paid. Indeed, in many cases in which a parent becomes unemployed, child support is simply re-calculated under the Guidelines based on the amount of weekly unemployment the paying parent receives.
It is important to note that the federal government, as well individual states, appear to be reacting quickly to the impending employment crisis by beefing up unemployment benefits in a variety of ways. This might mean larger unemployment checks or faster processing time. As noted above, it is important for support paying parents to remember that their child support obligation is not automatically reduced because they begin receiving unemployment.
Don’t Pay Nothing: Avoiding Pitfalls and Traps After Job Loss
Litigants often ask attorneys, “how much support should I pay?” after experiencing a decrease in income. The right answer to this question varies from case to case. If a parent is truly broke, then paying any amount of child support may be impossible following a job loss. If a parent is receiving unemployment, continuing to pay the prior child support order may be impossible, but voluntarily paying an appropriate amount of his or her unemployment benefits as child support based on the Guidelines formula is often advisable.
What is almost never advisable for parents who have lost a job is to pay nothing to the other parent. Even a small weekly or monthly payment is almost always better than paying no child support at all when it comes to gaining the favor of your judge. Moreover, a child support recipient who is much more likely to be cooperate if he or she feels that the paying party acted fairly following his or her job loss.
It is impossible to speak in absolutes when it comes to what steps support paying parties should take following a job loss. Every case has its own history, unique personalities and judge. In many cases, it will make sense for a parent who experiences job loss to be transparent with the recipient about when the employment ended, when unemployment is likely to start, and how much of the unemployment benefit the recipient will receive as child support. In other cases, parties will need to be cautious about over-sharing detailed information.
Are There Major Differences Between Reducing Alimony and Child Support After Job Loss?
In New Jersey, available income for alimony is defined based on the Child Support Guidelines. Moreover, there is substantial overlap between caselaw when it comes to reducing child support and alimony following a loss in income. In both instances, support paying parties file a modification motion, and are likely to seek a Temporary Order reducing their support payment while the case is pending.
There are some differences between reducing child support and alimony, however. The Child Support Guidelines tend to be applied somewhat formulaically when it comes to reductions in income. In contrast, judges are somewhat more likely to consider an alimony payor’s assets as a source of continued support, even if the payor’s income has decreased. These differences are not hard and fast rules, however. Judges may also consider a payor’s assets in child support cases.
In general, modifications of child support and alimony are more alike than they are different. In either case, support paying parties are filing similar pleading and making similar arguments. Moreover, it appears that New Jersey courts are delaying hearings for alimony and child support reductions in similar ways during the coronavirus.
Emergency Orders to Reduce Support During the Coronavirus Crisis
Even with the current restrictions, the public should recognize that attorneys will continue to work with courts to pursue alternate means of resolution. Unanswered questions include: Will judges be willing to decide certain issues based solely on written pleadings if both parties agree? Will judges enter written agreements negotiated by attorneys as orders, without the need for hearings?
Attorneys are a very industrious bunch. In New Jersey, the Administrative Office of the Courts has moved aggressively to outline a plan that balances public safety with legal needs. In the weeks ahead, attorneys will get the chance to stretch their creativity in seeking solutions for clients, both through electronic interaction with the courts and outside of court, between attorneys.
It is important for the public to understand that family courts are racing to find ways to service the public while limiting risks associated with crowds and in person hearings. It is important to recognize that court systems are quite likely to begin rolling out telephone and video hearing solutions well in advance of the crisis coming to end. All that said, it seems clear that as soon as courts re-open – or begin offering phone or video hearings on a large scale – there will be a rush to the courthouse by parents and former spouses seeking to reduce child support or alimony due to job loss. Amidst a crisis, it is easy for parties and attorneys to get tunnel vision. It can be difficult to plan for future events that we all know will occur when the crisis ends.
What we do know is this: Support-paying parties who experience job loss due to the coronavirus who take swift action will likely be rewarded, while those who wait for the crisis to end before taking mitigating steps may pay a steep price.
Ronald Lieberman, Esq. is a Shareholder and Partner at our Haddonfield offices. Ron share your concerns about COVID-19 and its impact on your family law matter. Our firm stands ready to help you deal with your matter and to address the unique events we are all facing. ALBFRM is closely monitoring the situation regarding the New Jersey Courts and will keep you informed as we learn more information.