COVID-19: Modification of Child Support and Alimony Due to the Virus
The COVID-19 virus is spreading chaos as well as disease. Every one of us has been affected by this unprecedented circumstance.
No one can say with any certainty when the virus will be brought under control, so it’s difficult to cope and make plans.
Within the past several weeks, personal financial situations have become volatile with government-mandated business shutdowns.
My clients have urgent worries about child support and spousal maintenance (alimony) payments.
Both the payor and the receiver (payee) need to understand how to proceed.
How to Mediate Modifications to Child Support and Alimony
The formal legal guidelines for modifying child support and alimony are below. But before I review those, let me discuss how mediation can be used to work through and prepare the modifications.
I’m meeting with clients using video conferencing (which complies with the NYS governor’s PAUSE policy) to create voluntary financial modifications to their current child support and alimony agreements. In this mediation process, the couple achieves clarity on issues such as the following:
- Whether these payments are reduced, deferred, or suspended; for how long; and under what circumstances will full payments will resume.
- Is it intended that difference between the payment amount specified in the original agreement and the modification amount be “forgiven” and not intended to be “caught up” at some point in the future?
- If alimony is adjusted, is the duration adjusted?
- How will the parents handle other child-related expenses outlined in their agreement or other expenses that may come up?
When the parties reach agreement, they can have their understanding written into a Memorandum of Understanding (MOU). Then there are 2 options:
- Enter the MOU into the legal system much as the original MOU was using a neutral attorney.
- The couple can act in good faith and follow the agreement without formalizing it. This requires both to fully understand that the agreement is not a legally binding document unless processed.
The Legal Processes to Modify Child Support and Alimony
There is a formal process to modify child support and alimony. Both require entering a modification request through the court system.
As of this writing (03/23/2020), petitioners (those interested in asking for the court’s help) have limited access to the Monroe County (NY) Courts. You will not be able to modify child support or alimony via the legal system as Family Court and Supreme Court are currently unavailable for those requests.
However, I am available to assist you in preparing an agreement which can be filed when the courts resume accepting child support and spousal maintenance modification requests. When that happens, the couple has two options:
- The request can be “stipulated,” meaning both parties agree, and the divorce decree is updated (using a mediated agreement or their own agreement); or
- A hearing can be scheduled. Then the modification, if any, is determined by a magistrate or judge.
Child Support Modification
The Court may modify an Order of Child Support pursuant to Family Court Act Section 451 where:
- A substantial change in circumstances; or,
- Three years have passed since the Order was entered, last modified or adjusted; or,
- There has been a change in either of our gross income by 15 percent or more since the Order was entered, last modified or adjusted, and the parties shall opt into the provisions.
In some cases, clients have opted out of either or both of 2 and 3 above in their original agreement. Provision 1 may not be opted out of. These terms are in the New York State Domestic Relations Law section 236 (A)(7)(d).
Arguably, the current economic and medical disruption may be deemed a substantial change in circumstances. The modification may likely include what happens when things return to “normal.”
Spousal Maintenance (Alimony) Modification
Spousal maintenance is somewhat harder than child support to modify because it has a higher standard. In order to modify spousal maintenance, one has to establish that the support obligation is causing an “extreme hardship.”
Again, an involuntary termination through no fault of your own or a substantial reduction in income through no fault of your own may be sufficient. These conditions are in the New York State Domestic Relations Law section 236 (A)(9)(b)(1).
Consider Me a Source of Support, Information, and Help
I hope you and your loved ones remain healthy and find some comfort during this global crisis. I am here as a resource to bring ease and gentler resolution to your financial and emotional circumstances.
NYS Court System
- NY Courts Support Modification and Enforcement/Violation Program. This applies to both child support and alimony.
For more divorce topics covered by BJ Mann: BJ Mann Site Content Index
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