Besides the over one million people who have suffered from COVID-19 and the over 68,000 persons who have not made it through the illness in the United States, the more fortunate have suffered the devastating economic impact of being out of work, losing their businesses and not being able to afford groceries. Thank goodness for the food banks and suppliers who have made certain there was food available to those who needed it the most. And thank goodness to those who have taken part in providing the groceries that the more fortunate have been able to purchase at the supermarkets and other food purveyors. It has not been an easy ride these past few months and it may not ease up as some would like to predict.
And here we are, once again at the first of another month when, according to Court Orders, a support check is due to be paid. What to do?
Support Orders are based on need, statutorily calculated for child support, and the ability to pay. Once established, courts are enforcing the orders unless there are legal reasons not to do so. During our pandemic, it is not likely the needs will be reduced, but the ability to pay may create defenses for non-payment. That is not true in all cases. If the assets continue to be available to make the ordered support payments, the payments will still need to be made, regardless of the current income issues.
Even if the ability to pay has been reduced, the needs of the recipient and family members who rely on the support checks must also be considered. Let us think about the possibility, and even the likelihood, that the person who is supposed to be receiving that support check may be no better off financially than the person ordered to pay the support. The former spouse may be supporting minor children with the support that was ordered to be paid, and without receiving the support, is unable to provide the support for the children of the parties. This presents a no-win situation for both sides to this equation.
So, are there solutions? The first thing that should come to mind in crafting a solution is to discuss the problem with the former spouse. Afterall, who better to attempt to resolve the conundrum of too little money to support the needs? Trying to work together so that some partial solution can take place is better than ignoring the issue. But this would presume that there is an open line of communication between former spouses.
And if the antagonism that existed during the divorce still lingers and direct communication is not likely to lead to constructive discussions, there are alternatives. Mediation is a possibility. And if a filing has already taken place for contempt or other relief, the court may send the matter to mediation before holding a hearing on the outstanding filings.
Utilizing the services of a parenting coordinator is another option where a third party intervenes to attempt to bring a resolution to the issue.
The use of the Collaborative Process, another alternative to litigation, brings both parties to the table with separate attorneys who will assist in finding a resolution that both sides have an active role in fashioning. If it was not used initially for the divorce, it can be instituted to secure a resolution to the support problem, post judgment.
If none of the above options are suitable, the parties can continue the litigation that drove a wedge between them and prevented them from selecting one of the other options. But it should be the option of last resort.
The litigation model pits one side against the other. On one side we have the person ordered to pay seeking relief either in the form of an abatement (partial or otherwise), which can be filed via a motion or in the form of a modification, which would be through the filing of a Supplemental Petition for Modification, based on a substantial and material, unanticipated and permanent change of circumstance. Note, however, in either of the two options, if there are assets from which payments can be made to satisfy the support order, the payments need to continue to be made.
On the other side, we have the former spouse who is supposed to receive the support payments. This former spouse may be seeking contempt or other relief from the court to require the payor former spouse to make the payments. Depending on the feelings toward the payor spouse, the former spouse, who is to receive the support payments, may be pushing for the most severe sanctions for lack of payments, resulting in more hostility and ugliness between the parties.
The solutions may not be easily obtainable, but the method used in seeking the solutions provide different odds of finding the right resolution. The Courts, if open, are currently enforcing their support orders. But that does not guaranty the support order can be enforced if there is simply no money to pay any portion of the ordered support. Based on the above, the parties should attempt to work together to find the best resolution available to them under the circumstances without resorting to the courts.
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Shapiro, Blasi, Wasserman & Hermann, P.A., with offices located in Boca Raton, Florida, has practice areas in Commercial Litigation, Labor and Employment, Construction Litigation, Chinese Drywall Litigation, Bankruptcy and Creditor's Rights, Real Estate Transactions, Real Estate Litigation, Business Transactions, Family Law, Wills, Trusts and Estates, and Appellate Matters. We represent clients throughout Florida and nationwide.