When a couple with children is going through a divorce, determining child support can be one of the most concerning issues. Generally, the two main factors that impact the amount of child support is the income of each parent and the time that each parent spends with the children. There is a specific formula designed in Massachusetts that produces what is presumptively the correct amount of child support in that case’s situation.
This process can become more troublesome if you or your former spouse is unemployed. Because the amount you each earn is an essential factor in this decision, you may be wondering how unemployment could affect child support. Alternatively, you may have concerns about complying with an existing order if you are already divorced and recently lost your job.
First and foremost, it is important to understand that job loss does not mean you can simply stop paying child support. In fact, if you owe child support and make the choice to stop complying with the full amount of your obligation under the original divorce or custody decree, you may face severe legal punishments. As soon as you lose your job, it is best to immediately file a complaint to modify your child support payment. If you are able to find a new job, you can always dismiss the complaint, but if you do not file and become unable to pay, you could land in very hot water.
With over 35 combined years of exclusive family law experience, our team at O’Connor Family Law is ready to help you deal with these challenges. We can explain your legal options and guide you through this process if you or your ex-spouse are unemployed.
Determining Child Support with an Unemployed Parent
When a child support case involves a situation where one party is unemployed, various factors may contribute to the final decision. In addition to any salaries or wages of both parties, the Court may also consider other types of income, such as Social Security or unemployment benefits. Additionally, the Court may look to whether the unemployed parent is making valid efforts in attempting to secure other employment.
How the parent became unemployed can definitely play into whether a child support order gets reduced. There are many reasons a person could lose their job – they get laid off due to no fault of their own. A medical situation arises that causes them to not be able to work to the same capacity they were previously working. The company they were working for could go out of business. These are situations that will likely easily support a modification of child support.
However, the Court does not typically have a great deal of sympathy for people who have left a job solely to try to avoid paying child support. If you are earning $85,000 per year and you give up your job to start working a minimum wage job at McDonalds, you’re likely going to get ordered to continue paying child support as if you were still earning the $85,000. However, if you are injured on the job and suffer some sort of setback that makes you unable to continue doing the work expected at the $85,000 earning level, then you’d probably have your child support reduced.
Many people believe that child support should not be reduced if you lose your job due to your own choice to act inappropriately or wrongly that then causes you to lose your job. The Appeals Court has held otherwise.
In 2017, there was a case decided by the Massachusetts Appeals Court, Emery v. Stutervant, where the Husband had a compensation package exceeding $450,000 per year as head of a private college-preparatory school. After the Husband admitted he had engaged in an affair with a subordinate, he voluntarily resigned from his high-earning position. During the divorce, he was ordered to pay support to the Wife based on the income he was previously earning. After seeking work for a period of time, the Husband accepted a new job where he only made $135,000 per year. The trial court judge dismissed the Husband’s request to lower his support payment finding that the Husband’s act of leaving his job was voluntary.
However, the Husband appealed, and the Appeals Court disagreed with the trial court. The higher court held that, in this case, the Husband had not retired early or chosen to pursue work in a totally unrelated field at a reduced salary regardless of other higher-paying jobs being available, which would support an attribution of income despite earning less money. The Appeals Court held that the question of whether there should be an attribution of income turned on whether the Husband was able to obtain employment through reasonable efforts. Once reasonable efforts were asserted in order to find new employment, there is no requirement that the Husband continues to seek a job that paid more than his current employment. Because of this, the Appeals Court vacated the trial court’s judgment and remanded the case for a redetermination of the Husband’s support obligations consistent with his actual earnings rather than his attributed income.
Dealing with Child Support and Unemployment After Divorce
When one parent loses their job after getting divorced, it is very important to file a complaint for modification of your prior child support order. Although most modification requests require a significant change in circumstances to be able to seek a change to the prior order, the majority of child support cases do not. The only requirement is the application of the child support guidelines would produce a different presumptive child support order than the amount of the current order.
If you need immediate relief after filing a complaint for modification of a child support order, you can file a motion for temporary orders asking for your child support order to be reduced. If the judge credits the fact that you left your job due to no fault of your own, you will likely be able to get a reduction based on your current earnings (or unemployment pay). If there is a question about why you left your job or whether you will be able to find new employment, the judge may deny your immediate request and state you can seek retroactive relief upon a showing of proof. This means you will have to show that you are using reasonable efforts to find a new job and did not solely leave your job to try to avoid paying support, but if you’re able to do that, the Judge will credit you for any overpayment made to the date they retroactively modify your support as of.
Speak with an Attorney to Learn More About How Unemployment May Affect Child Support
Facing job loss and mounting support payments can be scary. Additionally, it can be just as stressful to deal with a former spouse who is failing to meet their support obligation because of unemployment. Whether a person receives a severance package can also influence a request to lower child support based on losing a job. Fortunately, our caring and compassionate attorneys at O’Connor Family Law can help you figure out a solution and explain how unemployment could affect your child support. You do not have to go through this alone, contact us today.