Downward Modification: Avoiding the Child Support Trap

As a family law attorney, I am often contacted by potential clients who find themselves in a difficult situation.  They are served with a petition for child support arrears, along with the threat of a finding of willful violation of the child child support order, and possible incarceration.  Alternatively, they may receive a letter from the child support enforcement office indicating that their tax return is being withheld or that their license to operate a motor vehicle is being suspended.  By the time he has contacted an attorney, this person has already found himself in a deep hole.

While some find themselves in this mess because they don’t want to fulfill their obligations, the vast majority end up there due to circumstances beyond their control.  Many men lose their jobs and go on unemployment.  Eventually, they take another position at lower pay.  While on unemployment, they continue to have the same child support mount taken from their benefits and they struggle to survive on what’s left.  If they manage to find a lower paying job, they again struggle with what is left over after the income deduction is made.  Some will eventually take a job such as driving a cab, where they are paid in cash daily and the money is no longer being deducted automatically.  Having exhausted their savings, falling behind on bills and often borrowing in order to make ends meet, they find themselves unable to meet their child support obligations.  Arrears accrue and the trouble snowballs.

What many people don’t know is that they can, and should, immediately go back to court and file a downward modification.  Either through lack of awareness, or out of a sense of obligation to provide for their children, they don’t exercise this option.  Either way, the result is that they are in a deep legal bind.  The parent that is not longer receiving the child support---without an explanation---is understandably upset.

If you are subject to a child support order and you lose your job, you should immediately go to court and file a downward modification.  Although you have to keep paying until the order is modified, filing the petition starts the clock running.  Continue to pay as much as you can.  Contact an attorney.  If you can't afford an attorney, get your papers together and be prepared to present your case.  Be prepared to demonstrate to the court that you were involuntarily terminated.  If you received a termination letter from your employer, bring it with you.  If you didn't receive a termination letter, ask your former employer if the company could provide a letter explaining the reason for your termination.  Look for work.  Document your job search.  Keep track of every job you apply for; where, when and by what means.  Keep any rejection letters or emails.  Keep track of any interviews that you go on.  When you go to court, have all of your documents in order.  Bring several copies of any documents you wish to provide the court.  You should have a copy for the other party also.

Remember, hard times can fall on anyone.  Protect yourself and your legal rights.  When things improve, the order can be modified back up to an appropriate amount.  Best of luck.