Support Modifications: When the Going Gets Tough, the Tough File
We are living in tough times. With the pandemic we are facing increased unemployment. The loss of a job or decreased hours, can result in not being able to meet your court ordered support obligation.
You should not be paying support based on an income that is no longer there. The most immediate way to protect yourself is to file a motion for a support modification known as a Request For Order (RFO). The time to file is now. Do not wait. The timing of filing your RFO is crucial because the filing date of your RFO preserves retroactivity. Retroactivity establishes the date the courts can reach back to when modifying your support obligation.
By way of example, if you lost your job but then waited two months to file your RFO, the date the court will reach back to when modifying your support obligation is not the date you lost your job, but the date you filed your RFO.
Support orders can be modified even if you already have a Judgment. Also, filing an RFO for a support modification does not stop you and your ex-spouse or co-parent from working together and entering into your own agreement outside of court.
The advantage of filing an RFO first is to preserve retroactivity during the negotiation process, plus you have the added leverage of letting the other party know the seriousness of your intentions. If the negotiation is successful, it is important that you consult family law counsel before signing an agreement. If the negotiation is not successful, and you have already filed your RFO, which should be drafted with the assistance of counsel, you have your retroactivity date to fall back on.
On April 20, 2020, California Emergency Rule 13 was adopted which provides that an RFO to modify or terminate a support obligation can be made retroactive to the date your RFO is mailed or served on the other side as opposed to the filing date. Emergency Rule 13 makes it easier to preserve retroactivity because during the pandemic it can take longer for the court to file your RFO. Be aware that under Emergency Rule 13 after your RFO is filed you also need to again serve your newly filed RFO on the other side.
Melissa L. Mayer is a family law attorney.
This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.