In Indiana, there have been significant layoffs and job terminations due to the outbreak of the Coronavirus. For non-custodial parents who pay child support, suddenly their child support payments paid through a typical income withholding order does not occur. However, just because you lose your job does not lower or terminate your child support obligation. You have to act. The same is true if you are paying child support directly through the clerk. If you do nothing, your child support will continue to be owed and come to add up to a significant arrearage. This blog discusses options for parents who lose their job now during the COVID-19 outbreak (and in the future need or wish to modify child support).
The most important point to know about child support is that a trial court judge only has the discretion to make a modification back to the date the petition to modify is filed or any date thereafter.1 This means if you are terminated and wait three (3) months to file your petition to modify, you cannot reduce your child support retroactively to the date you lost your job, just to the date of your petition. Thus, by delay, you may owe hundreds or thousands in support merely because you did not file your petition when you lost your job. The take-away is to obtain counsel and properly file your emergency modification of child support as soon as possible after a job loss or significant change in income.
In fact, as Chief Justice Rush guides the judiciary through this historic time, she recently reminded parents in one of the Courts’ orders that if they lose their job it is their right to immediately seek an emergency modification of child support. While it may be the case that the trial court may not be able to hear this as an emergency because many courts are not conducting emergency hearings for this type of matter, you will be able to seek retroactive modification so you do not have a large child support arrearage. Secondly, this filing will be somewhat of a defense to you being found in contempt for non-payment of child support because it is not willful.
This might have you wondering what you have to prove at trial (other than the fact you lost your job if that is the case) in the evidence to obtain a modification of child support. This is set forth in the Divorce and Paternity Acts and is the same. “(a) Provisions of an order with respect to child support . . . may be modified or revoked . . . .(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) (A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and (b) the order requested to be modified or revoked was issued at least twelve (12 months before the petition requesting modification was filed”.2
Either of these provisions could apply to a job loss depending upon when your support order was established or last modified. However, and again, you must get your petition to modify it on file with the court. With your counsel, you must carefully develop your evidence for trial so you meet the burden of proof for modification. Unfortunately, some parents who do not know this and are seriously looking for a job, accrue large arrearages and then get the unfortunate label of being a deadbeat parent. Hopefully, this blog post assists you in understanding your rights if you are paying child support in Indiana. This blog is written by attorneys at Dixon & Moseley, P.C. who handle domestic matters, including child support, and appeals of family law cases from all counties in the state. This blog is written for general educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.