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Coping with Spousal or Child Support Issues During COVID-19

March 26, 2020

We are living through unprecedented times.  Many states have issued orders to “shelter in place”.   Our Governor has closed all non-essential businesses.  One significant effect of these conditions is the loss of diminution of employment.  As a result, people who are subject to court orders, may find themselves unable to pay their court ordered support be it spousal or child support.

The first thing to remember is that support is pursuant to a court order.  An order remains in effect although the courts have been closed.  Subject to a court order you are obligated to abide by that order or may face punishment through a fine or imprisonment.  Nevertheless, the court must find “willful contempt” of the Order before issuing any sanctions.  Job loss due to the Covid-19 crisis could be a viable defense to any enforcement action.

There are options that you can take to protect yourself if you are unable to continue paying support that the order specifies.  First and foremost, reach out to the other party.  Everyone is going through the same difficulties.  You may be able to work out some sort of temporary solution that provides some stability to the other party or the ability to work out other accommodations.  If you are able to do so, get the temporary agreement in writing and make sure both parties sign the agreement.  This will be an enforceable contract should a disagreement develop in the future.

If the other party is unwilling or unable to come to some sort of agreement, it is imperative that the payor file a Motion to Amend support as soon as possible.  While the Motion to Amend will not stay or reduce the current ordered amount, the motion will allow the court to retroactively change support if the court finds a material change of circumstance which the current crisis certainly is.  This will give the payor some protection if the length of emergency extends for some time.  Once the courts reopen, matters will be able to be adjudicated and, ultimately, brought to resolution.

In the meantime, it is imperative that everyone attempt their utmost to follow appropriate court orders and, more importantly, remain safe and healthy while we weather this crisis.

Richard Garriott is a Pender & Coward shareholder focusing his practice on family law.