Posted April 29, 2020
The current unemployment numbers as a result of the COVID-19 pandemic are staggering. For those individuals who have been lucky enough to maintain their employment through the current health crisis, many have seen their income significantly reduced as a result of cost-saving measures by employers concerned with the long-term survival of their businesses.
While some are hopeful that the current economic downswing will merely be a blip on the radar, it is impossible to predict how long the individuals who were terminated, laid off, or furloughed from their jobs will be out of work. It is equally uncertain how long “temporary” reductions in salaries will remain in place. Simply put, people who currently find themselves out of work or working for less pay are struggling to find a way to make ends meet. There is no consensus as to how long this “new normal” will extend.
With the elimination or reduction of their prior income, and the receipt of unemployment benefits at a substantially reduced rate, many parents are wondering whether a modification of child support is appropriate.
To start, it is no secret that both financial and emotional support are vital to the well-being of a child. New Jersey recognizes this principle and requires parents to pay support to ensure that their child’s basic needs are met. The right to receive financial support belongs to the child, not the parent.
It is well-settled law in the State of New Jersey that an Order for child support is subject to review and modification upon a showing of a substantial change in circumstances. Unfortunately, there is no bright-line rule to determine whether a change in circumstances is substantial thereby warranting a modification of a child support obligation. The determination of whether a modification of child support is appropriate rests in the sound discretion of Superior Court Judges. It is important to note that each case is fact-sensitive and in considering a request to modify support, Courts will consider many factors, including income, assets, and debts of the parties.
Child support obligations are generally not modified unless the payor can show that the purported change in circumstances is permanent. Courts have consistently rejected requests to reduce child support based on circumstances which are only temporary and/or speculative. The issue with the current influx of unemployment is that no one knows how long the current economic uncertainty will last or how long it will take our country to rebound from it.
It is my opinion that, absent other factors, Courts will likely view job-loss and/or reduction of income resulting from COVID-19 as a “temporary” change in circumstances at this time. New Jersey Courts are always reluctant to modify child support if a change in circumstances is not permanent. In the event Courts were inclined to recalculate support obligations so soon after the start of COVID-19 outbreak, the result would be an overwhelming flood of new cases with non-custodial parents seeking a reduction in child support.
Governor Murphy signed Executive Order 103 declaring a State of Emergency and a Public Health Emergency on March 9, 2020. It is my view that Courts will not be inclined to modify support orders until more time has passed, and we have more clarity regarding the length and breadth of the current economic downturn. That is not to say that if an individual remains out of work for several months, despite continued and legitimate efforts to obtain employment, that a revaluation may not be appropriate down the road.
Individuals who are currently out of work should take proactive steps to begin to build their case in the event an application or motion to modify support is necessary in the future. In cases of unemployment, Judges have generally required payor parents to show their efforts to obtain other employment. Simply waiting and hoping that a former employer will be able to bring an employee back is not the best way to demonstrate an individual’s motivation to find work and support his or her children.
It is advisable to apply to multiple jobs on a weekly basis and maintain documentation, such as applications and cover letters, to prove these efforts to the Court. While Judges may be more lenient on litigants due to the lack of available employment positions as a result of the coronavirus, good faith efforts to seek employment will be rewarded.
Finally, if you are currently obligated to pay child support, and you are out of work, it is highly recommended that you make some payment towards the obligation, even if you cannot pay it all. This is another way to demonstrate your good faith to the Court which will generally be viewed favorably.
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