Recently, I received a dozen or more calls each day from clients (past, present and potential) asking me what they should do now that their ex-spouse has lost their job or been furloughed due to the COVID-19 crisis. My answer to each of them is the same. “Now is not the time to panic.” Mortgages are being suspended, credit card companies are deferring payments, and the State and Federal governments are providing stimulus packages for those in need.
Simply stated, you will get through this. However, running to Court is not the answer. The Courts are closed, except for emergencies, and a failure to pay support is not considered by the Court to be an emergency. Realistically, you will not see the inside of a courtroom until June or July, and that is if you are lucky. So, what do you do? Let me start by explaining the law relating to child support modifications.
In New York, the general rule of law is that for a parent’s loss of employment to qualify as a “substantial and unanticipated change in circumstances” warranting a downward modification of child support, the obligor parent must establish not only that the termination was involuntary and “occurred through no fault of the parent “, but also that the parent “has diligently sought re-employment commensurate with his or her earning capacity.” Matter of Lorenzo v. Lorenzo, 146 AD3d 959, 959-60, 48 N.Y.S.3d 677 (2d Dept. 2017).
While it seems obvious that a loss of employment due to a COVID-19 termination or furlough would satisfy the first element of Lorenzo (i.e., an involuntary termination through no fault of the payor spouse), the issue most post-COVID-19 modifications will focus on is whether the payor spouse diligently sought re-employment. This issue becomes somewhat more difficult in cases where the payor spouse was furloughed with the promise or assumption that he or she will be rehired once the pandemic passes. In such instance, is the Court expecting that the payor spouse seeks alternative job opportunities in the interim? There are also some cases that seem to indicate that in the case of “extreme hardship” a court may suspend support without the need to prove that the payor spouse conducted a diligent job search. What then? Will the Courts treat job losses due to this unprecedented pandemic as “extreme hardship”? Will the need to seek alternate employment be excused when the whole state is under a virtual quarantine?
The answers to these questions are not known at this time. This is new territory for family law practitioners and jurists alike. However, I can offer you some comfort. First, the law generally makes. Second, the Courts of New York are courts of equity and law, and the judges have substantial discretion in making their rulings. Third, and most importantly, Judges are human beings. In all practicality, they may very well grant some form of temporary relief to the payor. This is not to say that the past balances (arrears) will be forgiven. Most likely they will not, unless you hire an attorney who can immediately file a modification petition for you. (Yes, they can still be filed). This may entitle you to a retroactive reduction in your support payments as of the date of filing of the petition, in the event your modification is granted by the Court, although you will not be in Court for many months due to the COVID-19 closures.
I would further note that if your ex-spouse is truly experiencing a hardship, contempt is highly improbable. The most likely outcome will be some form of payment plan to account for unpaid arrears and a temporary modification or suspension of payments for the foreseeable future.
The takeaway for this article should be this: Compromise. These are tough times for everyone, especially your children. The best you can do for them is to show your solidarity. Teach them that people should help each other in times of need. That no matter what happens, you and your ex-spouse will protect them and work together to help one another. Show them kindness, understanding and compassion by working things out. The world needs more compassion and caring for others, now more than ever. Put things in perspective. Be a role model and lead by example, for your children’s sake. This is a temporary hardship, and it will end. But you are parents forever and your children look up to you for guidance and direction. They will remember how you acted towards one another during these troubled times, and it will shape them for the rest of their lives.
My advice is simple. Payor spouses, pay what you can. Don’t use this pandemic as an excuse to avoid your obligations. You have a responsibility to your family, even after the divorce or separation. For payee spouses, be reasonable. Reduce payments temporarily. Work out a payment plan with your ex-spouse that will enable you to get by for now while providing for additional payments towards arrears commencing once he or she returns to work.
I hope this article has helped answer some of your questions and concerns. If you wish to file a modification petition to preserve your filing date, or you are unable to reconcile your differences with your ex-spouse, free to contact one of the matrimonial and family law attorneys at Barrows Levy PLLC in most instances, we can file your petition the same day you retain us.
