One of the most common issues that comes up after a divorce judgment has been entered is that the party who has been ordered to pay child and/or spousal support can no longer afford to make the payments. This article addresses the steps that should be taken whenever such an issue arises:
This one may seem obvious, but many people overlook it. The Divorce Judgment (or the Judgment of Dissolution of Marriage) is the very first piece of paper that anyone – lawyer, litigant, and/or judge – should look. That document provides the framework for determining how to proceed.
In some instances where judgment has been entered several years prior, the unaffordable support may already be terminable. It is imperative to look at the language in the child support or spousal support section of the judgment to see what conditions could trigger an automatic termination of support. For example, in California many judgments indicate that spousal support will terminate if the support recipient remarries. Alternatively, there me a specific end date for the payment of support set forth in the judgment. If such conditions exist, the payor spouse may be entitled to simply stop making payments.
It is also important to review the judgment to see if the Court has reserved jurisdiction over the issues of child support and/or spousal support.
The next step is to see if the matter can be resolved informally without litigation. To do this, it may be beneficial to first reach out directly to the support recipient to see if they are willing to agree to a reduction. If so, then the modification of support may be as simple as agreeing to a Stipulation and Order modifying the Dissolution Judgment.
If an agreement cannot be reached directly with the other party, then it may also be helpful to turn to alternative dispute resolution resources such as family law mediators or retired family law judges. Doing so can provide an objective voice of reason and a confidential forum for resolving the dispute in a more timely and cost-effective manner than litigating the issue in court.
If an agreement cannot be reached, then the only option may be to proceed with a post-judgment modification action in the Family Law Court. In many states, this will require filing a post-judgment Motion or Request for Order with the Court. A copy of the motion will need to be served to the opposing party.
Each state has its own requirements for post-judgment modifications. Many states have a threshold requirement that the party seeking the modification must be able to show a “change of circumstances”. This can be a fairly broad standard and can include things such as a reduction in income, a change in the custodial time percentages of each parent, an increase in income by the support recipient, etc.
Both parties will likely be required to update the Court regarding their individual financial situations. This will likely require them to sign financial disclosure documents under penalty of perjury and to support such documents with back-up documentation (such as tax returns, W-2s, account statements, etc.).
If a post-judgment modification action is submitted to the Court, the party submitting the action should research their state’s laws regarding retroactivity. For example, California will allow a party’s support obligations to be retroactively modified only up until the date of filing of the post-judgment Request for Order. Some states may only permit modification to take place on the date that the motion or request is actually heard and ruled on by the Court.
If you are facing a post-judgment modification action or you cannot afford your current child or spousal support payments, then you should consult with a family law attorney in your state as soon as possible.