Changing Spousal Support and Child Support During the COVID-19 Crisis
By Procopio Senior Counsel James A. Dooley
The unprecedented shutdowns imposed to control the spread of the Covid-19 virus are taking a heavy economic toll, and there unfortunately is not yet any indication of when they will end. In the meantime, some former spouses are paying or receiving spousal support and child support in amounts that were calculated based on a level of income that is no longer there, and may not be for the foreseeable future.
Fortunately, California law generally permits spousal and child support obligations to be decreased or increased following a change of income. A modification to the support amount can be done by agreement, or by Court order. Regardless of the approach, there are reasons to promptly file a request with the Court to modify support, even if a party suffering a loss of income believes it may be feasible to reach an enforceable agreement with the other party to change the support.
The main reason to file is to preserve what is known as retroactivity. Retroactivity is back-dating the effective date of the new support amount. California family courts are notoriously back-logged, so the initial hearing date scheduled on a request to change support often is not for months after the request is filed, and that is in ordinary times.
These are not ordinary times, of course. With the California courts now closed, hearing dates on new requests to change support will likely be scheduled several months in the future from now. When the hearing does arrive, the family court has authority to back-date the new support amount to the date that the request was filed.
A related reason it makes sense to act now in filing the request to change support is that it creates an incentive for the other party to engage in a discussion about changing the support by agreement. With a hearing date actually scheduled and pending—even months away—and with retroactivity preserved, the other party will see that avoiding the subject will not make it go away, and may be more willing to engage regarding the subject now or in the coming weeks. If that doesn’t happen, the court date will be there as a fallback.
The California courts are currently scheduled to reopen on April 6, 2020. Whatever date the courts do actually open, a request to change support can be prepared now for filing, and the hearing date will then be assigned. So while we may be in for a long wait for our courts—and many other parts of our lives—to return to a semblance of normalcy, the time to act on adjusting child support should a party suffer a loss of income is now.
James A. Dooley is a certified family law specialist and a Senior Counsel in Procopio’s Family Law practice. He has particular expertise in the civil litigation aspects of family law, but handles a range of family law matters and issues at all stages of the process, including establishing and modifying child custody and parenting plan agreements and orders; measuring income and earning capacity for child and spousal support obligations; and determining, modifying, and terminating spousal support obligations.