Sheltering at home is hard enough with a spouse and kids, but for divorced parents it can be a little more complicated.
So much so that NBC News recently reported on a number of ex-spouses, including a couple in Buffalo, who had chosen to hunker down together throughout the COVID-19 pandemic so that both parents had time with their children.
“Initially it was a little trickier because people were not as aware of the situation, they were unhappy that their ex-spouse was not letting the kids come over for visitation,” Schwind said of shared custody. “I have the sense that people realize this is globally a big deal and they have to work together because that’s the only way they’re going to get through this.”
The majority of the calls to law firms are from individuals who have lost their jobs, been furloughed or who have had to take a pay cut as a result of the pandemic, local attorneys say.
“Nonstop,” said Lawrence Krieger of Krieger Family Law about the number of calls he has received. “The two biggest issues we’re getting are parents who are either divorced or otherwise under a custody order wanting to know if the crisis gives them license to change the visitation schedule — the quick answer is no — and the other calls we’re getting are people who have lost their jobs or were furloughed in some way and need to modify their child support down or adjust it in some fashion.”
Schwind said that while he is not overwhelmed by calls of that nature, he has had a handful.
“What I’ve been noticing is that they’re more concerned that there is an immediate problem because they’re getting unemployment and they’re getting the stimulus,” Schwind said. “After a very short conversation, it becomes clear that they’re aware that the courts are not the place to go for any kind of relief these days.”
Schwind has advised clients to discuss the matter with their spouse, explain that they have lost their job and see if they can come to a short-term agreement that way. And certainly, clients need to document every initiative they make.
“Document that you’re trying because if there does become a need at some point to seek relief through the court, even though you can’t make the application right this minute, it shows that you made an effort to do it,” Schwind explained. “I think people are pretty receptive and aware that if somebody lost their job they can’t be paying.”
The standard child support payment is roughly 17 percent of wages for one child and 25 percent for two, although the calculation is a bit more complex than that. That can be deviated from based on the custodial arrangement, Schwind noted, but with courts not open during the pandemic, there is little that can be done at the moment.
Tully Rinckey PLLC has seen a dramatic increase in child and spousal support inquiries during the COVID-19 crisis. Common questions include whether a party has to continue paying support if they lost employment or income and what is to be done if court-ordered support is not being paid.
“This is an unprecedented area and we are seeing a lot of inquiries from people who do not know how to comply with court orders of support when their income has been affected,” said Barbara King, a partner with 30 years of experience practicing family and matrimonial law. “To further complicate matters, New York courts have not issued any guidance on the matter and individuals with support orders are left to negotiate and resolve these matters outside of the court system.
“Making the wrong decision in these types of situations can cause both a payor of support to be in violation of a court order and the recipient of support to be financially jeopardized,” King added.
In order to have child or spousal support amended, clients must have grounds, Krieger said.
“It’s not enough that there’s a crisis going on. You have to have objective, specific facts. If your income has changed — and it typically would be up or down 15 percent, so in this case if a person has reduced hours, is furloughed or has completely lost their income indefinitely — that would be grounds to modify child support,” Krieger explained. “You have to file a petition, preferably through counsel, and you have to provide supporting documentation.”
For most people that would be a termination notice or any other paperwork an employer has provided, as well as documentation on any unemployment benefits the spouse had applied for. And individuals need to prove that the change in income was involuntary.
“There are a lot of hoops that you have to jump through. What I’m advising people is they should reach out to the other parent to informally compromise to work out a temporary agreement yourselves,” Krieger said. “But what people should know is that nothing happens automatically. Child support that’s being collected through an order, especially through New York State, doesn’t change because you’ve lost your job or because there’s a crisis shutting everything down. You’ve got to affirmatively come forward and put together a petition.”
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