MODIFICATION OF CHILD SUPPORT DURING PANDEMIC
So, what do you do, in the time of Covid-19, if you’ve lost your job and are subject to a child support order that you can no longer pay? You realize the tremendous pressure you are under because your income had been reduced and you understand the hardship that reducing your support payments will have on your former spouse and children.
Ideally, you and your spouse are able to discuss the situation and reach a compromise. A good place to start is to complete the Massachusetts Child Support Guideline worksheet based upon your and your former-spouse’s current income. According to Massachusetts General Laws Chapter 208, Sec. 28, there is a rebuttable presumption that the guideline figure will be the appropriate amount of the Court order. The worksheet can be found at the following link: https://www.mass.gov/info-details/child-support-guidelines#2018-guidelines,-forms,-and-information.
However, should you be unable to find a solution on your own, it may make sense to introduce a mediator or collaborative team to the conversation. This can be done via teleconference or videoconference while still maintaining social distancing.
If an agreement is reached, either by yourselves or through mediation or collaborative process, the written agreement, a joint modification petition and current financial statements of both parties, may be submitted to the Court. Although the Courts are temporarily closed for most non-emergency matters, the Judge may entertain a request to enter a Judgment of Modification, adopting your Agreement, without anyone having to appear at the Court. Probate and Family Court Standing Order 2-20.
It is important to understand that Massachusetts General Laws Chapter 119A, Section 3 provides that a child support judgment can only be retroactively modified back to the date of service of a Complaint for Modification upon the other party. Therefore, it is important to file and serve your Complaint for Modification as soon as possible. By doing so you are setting the parameters of retroactivity. This is also true now, while the Court’s doors are closed to all but emergency hearings, because the Clerk’s Office will still accept such a pleading for filing. Although the Court likely will not act on the Complaint during the coronavirus pandemic, when the declaration of emergency lifts and the Courts reopen to usual business, the Judge has the ability to retroactively modify child support to the date of service of the Complaint.
Filing a Complaint for Modification to establish a date for retroactive relief should not be viewed as shutting the door to settlement. It would probably be a good idea to reach out to your former spouse, before serving him/her, to discuss your job loss and your desire to work toward settlement while explaining the need to file and serve the Modification Complaint. This may soften the blow and make settlement more likely. However, it is important to file and serve as soon as possible to safeguard your rights.
Lastly, if you and your former spouse plan to informally agree to change the child support obligation without changing the underlying court orders, be advised that you do so at your own peril. In the opinion of Quinn v. Quinn, 49 Mass. App. Ct. 144 (2000), a written agreement to lower child support was not a defense to a later Complaint for Contempt, as the orders were not changed. The basis of the opinion was the prohibition, contained in MGL Ch. 119A, Sec. 3, that child support orders can only be modified to the date of service of the Complaint. As no Complaint for Modification had been filed, the Court could not retroactively modify the order and the payor spouse was found in contempt of the child support order despite having complied with the written agreement. Point being – if you make an agreement to modify child support you should change the Court orders!