It was reported that Avengers actor Jeremy Renner filed for a child support reduction, citing the shutdown of his current projects due to the COVID-19 pandemic. With all of the uncertainty in the world right now, income and payment of expenses are a top concern on everyone’s mind. According to the Department of Labor statistics, close to 3.3 million Americans filed for unemployment in the past week, which is the largest number on record ever. To give some perspective, the previous high was $695,000 in 1982.

In the past week, I have received numerous calls from both payors and receivers of child support concerned about what impact the recent economic downturn may have on his or her child support. What if they lose their job? What if their pay is reduced? What if they don’t receive all or part of their monthly support? With courts closed is there anything that can be done now?

Child support is always modifiable if a substantial change in circumstance occurs that warrants an adjustment. What qualifies as a substantial change in circumstance is a gray area. There is no list of circumstances deemed “substantial,” and the judges are afforded wide discretion in making this determination. If the court decides that a no substantial change in circumstance has occurred, the filing party won’t even make it to the next step of recalculating support. Some events like loss of employment are more likely to be considered a substantial change, but even in those cases there are always exceptions.

Loss of employment. Loss of employment is the most common alleged change in circumstance among filing payors. However, there is an important distinction between a party who is involuntarily terminated and one who quit their job. A party with a child support obligation cannot just decide to quit their job because they don’t like it, or because they want to stick it to the other parent. In cases where the court determines the unemployment is voluntary, the court has the ability to impute income to the unemployed party and keep the support amount the same as if they were still employed at the former job. In the event the loss was involuntary, there is a high likelihood the court will reduce or abate the support obligation.

Income change for party paying support. In the event there is a change in the income of the party paying support, the court may find a substantial change has occurred. A minor raise of a few thousand dollars per year likely will not qualify. Also, recent caselaw suggests that an increase in the payor’s income may not constitute a change, particularly where there is an annual “true-up” provision, i.e. support is paid on a “base” salary and an additional percentage of support is paid on income over that “base” amount. If a paying party’s income is reduced involuntarily, this is likely to be found a substantial change in circumstances depending on the amount of the pay reduction.

Income change for party receiving support. This factor may be viewed differently than a change in the income of the party paying support depending on when the initial order was entered. Prior to July 2017, the income of the party receiving support was largely irrelevant. However, under the current child support guidelines, both parents’ incomes are included as part of the calculation. Therefore, it is certainly possible that a change in the income of the party receiving support could be considered a change. It is even possible that the party who is paying and receiving child support may reverse under the current support guidelines.

Change in parenting time schedule. Under the current child support statute, the time each parent spends with the children is part of the calculation. A parent is considered to have parenting time for child support purposes on any day that he or she has the children overnight, regardless of whether the child was with the other parent at another point in that day. For example, if in a 14-day period, both parents have the children for seven overnights, it would be considered a 50/50 parenting time schedule and there would be a significant reduction to the amount of child support paid. The paying parent will receive a lesser reduction in the event he or she has between 40 and 50% of the time, which is determined as having at least 146 overnights in a year. As such, a change in the number of overnights a parent has may be a basis for a modification in child support. However, recent caselaw suggests that a court should not just presume a parent’s expenses increase when he or she gets more parenting time. The party seeking the reduction should also demonstrate specifically how the change in schedule directly resulted in an actual increase of expenses.

Having another child. In the current child support calculator, there is a factor called the “multi-family adjustment.” This means that if a party paying child support has another child with a new partner, there is a reduction in the child support even where that child was born after the initial child support order and even if there is no child support order for the new child. This is a big change, since prior to the 2017 amendment, the child support would not be reduced at all for subsequent children born in different relationships.

 Other child-related expenses. There are certain child-related expenses that are considered separate and not included in the child support calculation. These typically include childcare expenses, insurance premiums, uncovered medical expenses, school expenses and activity and camp expenses. Under the old child support statute, these expenses were frequently divided 50/50. However, under the current child support statute, these expenses are often paid proportionate to the parent’s income prior to child support being paid. Maintenance is included as income in the calculation. For example, if Party A earns $100,000 and Party B earns $230,000, the expenses would be split 30% to Party A and 70% to Party B. If child support is modified, the payment of child-related expenses may be modified also.

Timing of filing. In the event of a substantial change in circumstance, it is important to get the Petition to Modify Support on file as soon as possible, because any modification can only be granted retroactive back to date of filing. So, for example if you lose your job, or your pay is significantly reduced, you want to get the petition on file immediately, so that any modification can be as close to the date of the change as possible. Even with courts currently closed for most matters, we are still able to file online and obtain future court dates. The other reason to file as soon as possible is because the receiving parent will likely file a contempt petition if they are not receiving their court-ordered support.  

Since every case and every situation is unique, it is important to consult with an attorney regarding the specific details of your child support situation, so that if actions is needed, it can be taken to protect your rights as soon as possible.

Shana L. Vitek – Divorce and Family Law Partner