By Andrea Johnson
Attorney, Cordell & Cordell
With the current economic situation, many unemployed divorced dads cannot afford child support payments.
Some just pay what they can for a period of time until they find another job. Others make informal agreements with their former spouse about a temporary modification.
Both of these courses of action are wrong.
If this happens, it’s likely you will end up owing significantly more money in addition to court fees and the costs for litigation. For example, if you have an arrearage of $3,000 and your former spouse files a contempt action, there is no way you are going to get around being required to pay back the arrearage amount.
Additionally, if the court finds you in contempt for failure to pay the ordered child support amount, you are likely going to be ordered to pay your former spouse’s legal expenses in the contempt action. The theory behind this is that they would not have otherwise incurred the expense except for their need to collect child support arrears.
You are also likely going to incur legal fees of your own, as it is never wise to walk into a courtroom on a contempt case unrepresented. So what began as a $3,000 arrearage can easily turn into a $10,000 obligation with jail time as the option for non-payment. This is definitely not the best option.
If you choose to make an informal agreement with your former spouse, it may work for a while and things may go according to your agreement. However, you should know your informal agreement did absolutely nothing to change your court-ordered obligation.
This means that in spite of your agreement, your spouse can come back at any time and hold you in contempt for failure to pay the court-ordered amount. Rest assured this will happen.
She may be nice for a while, but that will last only until her pocketbook tightens. She will see the money you did not as an easy collection to get her finances back on track. Then comes the contempt case. Again, not the best option for you.
If you have lost your job, are receiving a reduced salary, or otherwise have an involuntary loss of income, you need to file a petition for modification of child support immediately.
In the state I practice in (Georgia), the law allows for a modification of a child support order when there has been a substantial change in circumstances of either party warranting a recalculation of child support. This includes your involuntary loss of income. It may also include a significant increase of the custodial parent’s income, as well.
What’s the advantage of immediately filing a modification action?
In Georgia and likely other states, the court may modify the child support order beginning at the time of the filing of the petition for modification of support. Additionally, the filing of the petition for modification will likely protect you from facing a contempt action.
Understand, however, that the Court has the discretion to not retroactively modify a support order back to the date of filing. You are more likely to obtain a favorable decision on retroactive modification if you file right away and allow little to no arrearage to accrue prior to the filing.
By immediately filing a modification action, this will protect you and prevent possible additional charges from incurring that you would not otherwise owe.
Cordell & Cordell has men’s divorce lawyers located nationwide should you seek legal representation.
Andrea M. Johnson is a Senior Attorney in the Atlanta, Georgia office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Johnson is licensed to practice law in the state of Georgia. Ms. Johnson was born in the metro-Atlanta area and has spent most of her life in Georgia. She received her Bachelor of Science in Political Science from Columbus State University in Columbus, Georgia in 1998. Ms. Johnson received her Juris Doctor from Mercer University School of Law in 2002. Since graduating from law school, Ms. Johnson has practiced in the area of family law. Additionally, she has worked in general civil practice, immigration, and estate planning. Ms. Johnson has briefed two cases successfully before the Georgia Court of Appeals, one of which was a modification of custody action.