Modification of Support Obligation Based on COVID-19 Layoff in Virginia
The COVID-19 pandemic has impacted nearly every aspect of our lives. Aside from the health of those afflicted, perhaps the greatest damage has been economic. Unemployment has skyrocketed, affecting even people who previously felt secure in their employment.
Losing a job for any reason is stressful. For those who have a child or spousal support obligation, there is an extra level of concern. The good news for those people is that, with some exceptions related to spousal support, the law does provide relief to those who qualify and know how to seek it.
First the exceptions. In Virginia, a spousal support obligation is not modifiable if:
- It is pursuant to an agreement (as opposed to ordered by a judge) that was entered into prior to July 1, 2018, and the agreement does not state that spousal support is modifiable; or
- It is pursuant to an agreement that was entered into after July 1, 2018, and the agreement specifically states that spousal support is not modifiable.
If you are not in either of those two categories, your spousal support obligation is modifiable. And child support is always modifiable.
For child or spousal support to be modifiable, there needs to have been a material change in circumstances since the date of the court order establishing the initial obligation.
But not all such changes in circumstances justify a modification of support. In general, the change must be involuntary. For example, a support payor cannot quit his or her job and expect to have support reduced. The same is probably true if the payor is fired for cause.
The most common material change in circumstance that does justify a modification of support is when the payor is laid off from employment due to forces beyond the payor’s control. The COVID-19 outbreak certainly qualifies.
Unfortunately for the support payor, a modification due to a change in circumstance is not automatic. You will continue to owe the full amount of the initial obligation unless and until you and the recipient enter a written agreement or a court enters an order modifying that obligation. You should not rely on any informal agreement with the recipient. Any agreement must be in writing and signed by the parties, and should be reviewed by an attorney before being executed.
If you and the recipient cannot agree on whether a modification is appropriate, or to the extent of the modification, you need to file a motion with the court to modify your support obligation, and there will be a trial held on what modification, if any, is appropriate.
As the reader might suspect, most trials in Virginia courts are suspended due to COVID-19, including trials on motions to modify support. But that is no reason to hold off pursuing a reduction. A judge can reduce a payor’s support retroactively to the date a motion requesting a modification is filed, but not before then. So when you do get your day in court, the judge can undo any prejudice to you caused by the delay.
Even if you are confident that you will reach an agreement with the recipient, you should still file a motion as soon as possible to preserve your right to seek a reduction from the earliest possible date, and thereby maintain leverage in negotiations. Every day that passes before you file a motion is a day that a judge cannot relieve you of the burden of a support obligation you can no longer afford.
If you have been laid off or had your income reduced due to COVID-19, be sure to review your options for support modification with an experienced family law attorney in your area. Livesay & Myers, P.C. has a team of experienced family lawyers across offices in Fairfax, Arlington, Leesburg, Manassas, and Fredericksburg, representing clients across Northern Virginia. Contact us to schedule a consultation today.