By Hope Tuber
Once child support is established, the terms are normally placed in an agreement which is then used to facilitate your divorce. This separation agreement is a contractual obligation on the parties. Consequently, when entering into this agreement, you must make sure that the terms are something that you are able to live with. If you decide later that you want to change the terms of the agreement, the Courts will first look to determine if the needs of the child are not being met.
Generally speaking, child support will not be changed unless there has been an unforeseen change in circumstances and a concomitant showing of need. What qualifies as an unforeseen change in circumstance? This is decided on a case by case basis. The one change in circumstance which never works is when the paying spouse intentionally quits their job and then runs into Court claiming that they can no longer afford to pay child support. If you have a child support obligation and you purposefully quit your job or become “underemployed” you will still be liable for child support at the amount in which you agreed in your divorce.
What if you lose your job due to no fault of you own? That’s where the facts and circumstances of your matter come into play. For instance, suppose you lose your job because the factory you were working closed. Clearly, neither foreseen nor anticipated. However, you are not allowed to sit home and not work. You are not allowed to claim you cannot pay for child support because you lost your job. It is incumbent on you to find another job. Of course, you can petition the Court to modify your child support, but you have to demonstrate that you are actively searching for new employment. We advise our clients to immediately start looking for a job. Go on interviews, attend job fairs do anything that can show that you are actively looking for work. If you can substantiate to the Court that due to no fault of your own, you have lost your job, but you are doing everything you can to obtain new employment, you maybe be able to get a modification of child support.
What if after your search, you immediately find a new job but it is substantially less than what you were making? Again, it depends on the facts of your case. If you were a doctor, and you took a job as a waiter, the Court will not look kindly that you are under employed. What if you were a waiter, and you obtained a job as a waiter in another restaurant. Depends. Were you a waiter and Ruth’s Chris and now you are at a local diner? Maybe you’re underemployed, maybe you are not. Did you take this job pending other interviews? Again, it all depends on your facts and circumstances and what you are doing to obtain employment.
If you are the one receiving child support and your spouse has stopped paying, you want to look into why. If your spouse intentionally quit their job, then move for contempt. The best interests of your child dictate that your spouse should not be allowed to quit a job to avoid child support. What if the loss of employment was clearly not your spouse’s fault? The best thing would probably be to agree to a temporary reduction in child support, pending new employment. If there is a legitimate change in circumstance, you cannot get money from a source that does not exist. A temporary adjustment will give your spouse time to get a new job and demonstrate to the Court that you are reasonable should you need to go that far. You need to know the reasons for the lack of support. If there are valid reasons, we recommend working with your ex-spouse. If there are no valid reasons, then Court may be your only solution.