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Changing Child and Spousal Support During COVID-19

The way child and spousal support typically work in California is that either spouse/parent can seek to obtain an order for support from the Superior Court upon filing for divorce, legal separation, paternity or other appropriate action to bring a case to the family court. The person seeking support would file a motion to request support and in doing so a date would be set to for the Judge to hear the matter and when making the support order would have the ability to set support retroactive to the date the motion for support was filed. After an order for support has been made by the Court it remains in place until it has been changed by the Court. The court will accept agreements to modify but otherwise the support remains the same until a new motion has been filed with the Court and the Judge orders a change. In hearing such motions the Judge is unable to make orders to a date prior to the filing of the motion. The applicable rules limiting the Court’s ability to go back prior to the filing of the motion are found in Family Code 4009 and 4333.

So what happens when you have a major health pandemic which causes substantial job loss and forces the Courts to close their doors for a lengthy period of time? As of the time of this writing the San Diego Courts have been closed from March 17, 2020 through April 3rd and we are all waiting to get an update about an extension of the closure. Under the current rules support payers who have suffered a substantial change to their incomes should be filing their motions to adjust support but are unable to do so.

The most practical solution is to communicate with the other parent/spouse/former spouse about agreeing upon an appropriate adjustment to support. This can be done with or without the assistance of a divorce professional such as an attorney or mediator. If agreement is reached it should be memorialized in writing and filed with the Court once reopened. Child support in California is calculated by guideline and a calculator can be found at https://childsupport.ca.gov/guideline-calculator/ There are other nuances to changing spousal support so it may be advisable to speak with an attorney or otherwise obtain more information to assist in considering an appropriate adjustment. Once the circumstances return to normal then further appropriate adjustments can be made.

The harder question is what happens when the other parent is not willing to entertain a fair adjustment. The Court order remains but the payor no longer has the ability to pay support at the level ordered. It seems the most proactive approach is to inform the other parent and document efforts to fairly address the change. Keep informed about the status of the Court closure and be prepared to file the appropriate motion as soon as the Court is back open. Comply with the existing order as you can. The Court is certainly aware of the impact its’ closure has on issues such as support and support modification and may issue further directives on how these issues will be dealt with depending on the duration of the closure.

Both homes need income. Dependent spouses and children need to be supported. Supporting parents/spouses need to be able to pay their bills too. Working with each other to meet the needs of both homes in the best way possible is the most practical and decent thing to do. The Courts will be there to sort all this out later.

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