My husband is unemployed and can't pay the spousal support he owes me.

Don't give up when it comes to your unemployed spouse unable to pay you the financial support they owe you. Make sure they really are without a source of income, and then assess their financial status to see whether or not they are still capable of paying

By Stacy D. Phillips
April 07, 2009
CA FAQ/Child Support

My husband is unemployed and says he can't pay the child and/or spousal support he owes me. Is there anything I can do?

In these difficult economic times, requests for downward modifications of child and spousal support (including post-Judgment requests) have skyrocketed. In fact, an article in the New York Times in March highlighted this phenomenon and the resulting dilemma faced by family law courts. Unfortunately, when a spouse legitimately loses his/her job (most often the principle source of income for that party), not much can be done to avoid at least a reduction in the amount of support paid.

That is not to say that you should simply "give up". Difficult economic times call for creative solutions -- i.e., thinking outside the box. First, it is crucial that you obtain verification of unemployment and the reasons therefore. Simply not wanting to work is not a legitimate basis on which to claim unemployment and a reduction in support obligation. If your husband quit his job because he prefers to lie out on the beach, you can seek an order imputing your husband with the income he was earning and requiring him to continue paying. Even if your husband legitimately lost his job, if he has the ability and opportunity to work at some other job (which, hopefully, pays well) but chooses not to, he can be imputed with the income from this other job.

Second, if your husband has legitimately lost his job, this does not mean that his entire support obligation is necessarily wiped out. Gross cash flow for purposes of setting support is not limited to business or employment income. What portion of the support award is, or should be, based upon annuities, royalties, trust income, dividends (including dividends, interest, rent, etc. derived from gifts and/or inheritance)? If these sources of income still exist (even if reduced), the support paid by your husband may be reduced, but should not be eliminated altogether.

Third, has your husband applied for unemployment benefits? If so, that is a source of income on which support is calculated. Fourth, are there any expenses which your husband can eliminate in order to increase his cash flow? Does he really need to lease that 2009 Escalade for $1,400 per month; does he really need to pay $500 for that country club or spa membership, etc.? While a court may not order him to "downsize", he should be willing to do so (if his priorities are in the right place). Fifth, and undoubtedly the least desirable, if your husband is being uncooperative, you can take your husband to court. The problem with this alternative is that it is costly and the result unpredictable.

Stacy D. Phillips is a co-founder of Phillips Lerner, A Law Corporation, which specializes in high-profile family law matters. She is co-chair of the Women's Political Committee and a member of Divorce Magazine's North American Advisory Board. She can be reached at (310) 277-7117. View her firm's Divorce Magazine profile here.

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April 07, 2009

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