“I have lost my job; how do I pay my child support that is coming due?
What relief, if any, am I going to get? What happens if I file for unemployment? Is my stimulus rebate program check subject to child support I owe?
These are all timely, relevant, and important questions that have not been addressed and yet affect every divorced family in Texas. While there has been no pronouncement, or Coronavirus Order,
issued by the Supreme Court of Texas as to child support like was done regarding possession and access, this reality is going to force its way into the conversation of effects from the Coronavirus Disaster. With more than 760,000 Texans applying for unemployment insurance over the last four weeks, the sheer numbers of people losing their jobs are going to force everyone to address child support. While there are no current orders or guidelines to follow, we have the history of past recessions (called “precedent” under the law) to provide the groundwork for an educated guess as to what needs to taking NOW the steps to protect yourself in the future – be it as Child Support Payor or Child Support Receiver.
First, don’t sit around waiting for someone to come save you. Protect yourself first. The law in Texas is that every child support payment ordered to be due by any Court Order (Divorce decree, Suit Affecting Parent-child relationship, modification Order, or the like) are FINAL when they come due. The law says such child support installment payment is like a “mini” judgment – it is final when due and cannot be modified later. I have done this for 47 years and what I have seen in recessions like this is people waiting to see what will happen, trying to secure unemployment benefits, and looking for new jobs. The legal consequences stemming from losing their job is often last on their list of worries. By the time they get around to seeking the help of a lawyer, they may have put themselves in a position where they now owe thousands of dollars and no way to get it forgiven or reduced. If they had just filed a simple Motion to Modify child support immediately upon getting laid off, the filing would solve their immediate problem. They would have put themselves in a position of control over how much they owe, knowing what their child support payment should be during their lay off, and stopping collection actions against them by their ex or the Attorney General.
The filing of a motion to ask the court to give retroactive relief as to a child support obligation preserves an Obligor’s right to go back to when the original lay off happened and have your child support reviewed for a reduction using that date. Even if you don’t get to court for a hearing for many months down the road, the law gives the Judge the discretion to use your filing date as the time to reduce your support.
If you are on the receiving end of child support, then similar advice applies for you – don’t wait. Contact the Attorney General or a private attorney and get advice as to what you can do. You have remedies that will protect you from your child support stopping. A lawyer can advise you about Wage Withholding Orders, child support liens, and Motions for Enforcement. Nobody – paying party nor receiving party, benefits from waiting in a recession with loss of income and livelihood. You and your children’s other parent can make things easier during this time by working out agreements, but this is where I have seen more mistakes made, and problems jump up later on down the road than anywhere else. Everyone thinks, “well, we have an agreement, all is well and I don’t need a lawyer.” The truth is, you need one, even more, to make sure the agreement you reached gets properly reduced to writing and the appropriate documents are filed with the Court to make that agreement enforceable and binding. If you don’t, I can almost guarantee you down the road someone will deem it better for them not to acknowledge nor abide by the agreement. It is worse if this “agreement” is oral. And no, emails and texts most of the time don’t rise to a binding contract level. So, a rambling text string you saved with your ex that recounts the two of you talking about kid matters from way back at the time you lost your job is, in all likelihood, not going to work as a binding legal modification. Even if that text clearly states “how the kids will be exchanged with the virus going around, what to do about Easter and, by the way, I’m ok with you not paying child support right now because you lost your job – just help me with their expenses while quarantined,” it won’t pass legal muster.
Second, you are wasting your time in filing for any relief from the Courts if you got fired or let go and got any severance. Experience again has shown me the Court won’t change one penny of your support ordered to be paid until that severance package money has run out. But, when it does, very important to file before that end date of your ex-company sending you checks to preserve your claim.
Third, if you file for unemployment, then expect your ex to temporarily get the proper percentage of support from what you get from the Texas Workforce Commission. Currently, the Texas Workforce Commission determines your weekly unemployment benefit amount by dividing your earnings for the highest-paid quarter of the base period by 25, up to a maximum of $521 per week. Benefits are available for up to 26 weeks.
Fourth, by filing a Motion to Modify when you first lose your job or are laid off will serve as a “place marker,” if you will, to get temporary relief from this downturn in your career and work. Historically, when these types of recessions occur, the Courts will temporarily reduce support, then reset your case for 90-120 days down the road to “review” where everything is at that time. The Court will give some temporary assistance and at the same time, tell the child support Obligor to get out there and find a job.
Fifth, the law is that determining a child support Obligor’s actual child support amount to be paid is not set on what that person is making, but can be set on what that Obligor’s earning potential is. The issues involved in intentional underemployment or unemployment are very complicated and an attorney should review and advise.
Sixth, if you work for a family business or operate a business owned by you, a visit with an attorney is almost mandatory in order to navigate a child support reduction due to downtown in the economy that is affecting your business, income, and pay.
Finally, Obligors and Obligees should know that the United States Congress added a number of exemptions concerning the stimulus rebate payments within the CARES Act. However, they did not exempt child support arrears. Therefore, if an Obligor owes more than $150 in a public assistance case or more than $500 in a non-public assistance child support case, federal law requires that the stimulus rebate payment be intercepted up to the total amount of child support owed.
Yes, we are all worrying about social distancing and staying home. However, the underbelly of this sole focus on health and safety is the financial effects the pandemic will have on our lives. How will we financially support our children in the near- and long-term- future? Action now is required. Procrastination or “head in the sand/wait and see” plans will only cause tremendous future problems. It will take years for you and the Courts to clean up these financial matters. It will also make you regret sitting on the sidelines when a simple action plan now would protect everyone and your children.