COVID-19 JOB LOSS AND UTAH CHILD SUPPORT
Many people have been the victims of job loss due the coronavirus pandemic. Businesses are scrambling to meet payroll and avoid permanently shutting down, resulting in layoffs and downsizing. Some of these Utah employees are court-obligated to pay child support payments. The question they’re asking is: what do I do if I can’t pay the amount of support ordered in my Divorce Decree to the custodial parent?
What if I can’t make my child support payment due to COVID19?
BEST PRACTICE ADVICE is to make what the Utah courts call “good faith support payments” in some amount. This amount may be as little as 10% of the original support payment.
If a custodial parent (i.e., the parent receiving child support) files what’s called a Motion for Order to Show Cause in Court to enforce past due support payments (called “arrearages”), the Court would expect that the child support obligor/payor (i.e, the non-custodial parent who owes support) has been doing some or all of the following:
- Reducing household expenses (e.g., turning off non-essential services like cable, not eating out at restaurants, etc.).
- Applying for state or church assistance benefits, including Unemployment Insurance as available.
- Actively searching for replacement work.
- Making a “good faith support payment” of some kind, which is earmarked for the child, not the custodial parent.
- After returning to work, arranging to pay some amount of make-up payments each month in addition to the base support payment until they are current on support.
A party who violates a lawful court order (e.g., child support order) is in contempt of Court. To be found in contempt, the custodial parent must prove that the child support obligor/payor: (1) knew that they had to pay child support; (2) had the ability to pay support; and (3) intentionally failed or refused to pay support. It’s generally not a hard case to make. If the custodial parent is collecting support payments through the Utah Office of Recovery Services (ORS), the ORS can provide a statement showing past due payments.
Making good faith child support payments could save you from court sanctions
The child support obligor/payor can bring a defense of “inability to comply.” But, to establish this defense, they must show that they “exercised due diligence toward compliance.” Proof of “due diligence” includes, e.g., “good faith support payments” of some amount, etc. In that case, the Court would still find the non-complying party in contempt, but it would not immediately issue sanctions (e.g., attorney fees, etc.). Instead, the Court allows that party to “purge” the contempt by, e.g., “making good faith support payments” etc. until they can pay support at original levels. The court would likely also order that the non-custodial parent be actively searching for work, etc. The court typically schedules another Review Hearing to check on the status of their job searches, good faith support payments, etc.
If you are struggling to know how to handle the current situation and your inability to pay child support, or if you have been summoned to court due lack of child support payments we can help you! Call Hoyer Law for a consultation today.
