We have previously posted many blog entries regarding modifying alimony and child support based upon job loss and/or reductions in income in light of the historic, current economic down turn. To see some of my prior posts, click here, here, here, here, and here.
In our practice we have seen many clients coming in to address these issues and have heard anecdotally from judges that the increase in these kind of motions has hit the courts.
That said, there is still little consensus on how these cases are being handled. There is no consensus amount the courts regarding how long you have to wait to come to Court. There is no consensus amount the court’s regarding how much of your assets you have to go through, or whether you have to incur debt before you can file.
There seems to be a focus on the lifestyle of the support payor, i.e. has he or she reduced their lifestyle. While that is an appropriate consideration, it may be too simplistic. Looking at the house someone lives on or the car that they drive likely does not tell the whole story. Can the person reasonably sell their home in this market without facing a deficit? How long would it take to sell the house anyway? Maybe the car is leased or if financed, there is negative equity and they cant rid of it to reduce their expenses.
The bigger question is whether despite a clear loss or reduction of income, whether the payor has to strip their lifestyle to bare bones, or whether the undisputed reduction of income should be enough.
Court’s also have to beware the opportunist who is using the bad economy in general to try to reduce or limit their support obligation when there is no real credible evidence that they have or will be affected. Scrutiny in this regard is particularly difficult when the payor is a business owner and has the ability to control their income in various ways. The skepticism and scrutiny in these cases is heightened. I have two cases now represented service providers – one of whom has lost many long term clients because they have simply gone out of business – and the other, who has received less than half of the orders and deposits then have historically been received by this time of year (and it is a seasonal business).
I had a support motion last week where the payor claimed that "his boss told him that his income was going to be down this year." However, his 2008 income was consistent with 2007. Further, his year to date income, when annualized, showed that he may earn more. In that case, I successfully argued that the Court had nothing more than hearsay and the husband’s statement and thus, could not base support on a lower number than historical.
The point to be reiterated again is that when you make a motion to reduce support, give the judge as much information as possible regarding why you lost your job, whether you were the only one or whether there was a reduction in force, what efforts have you made to find a new job (including voluminous and painstaking records regarding each inquiry and response), if you took a new job for lower than your historical pay, why you did this as opposed to holding out, what you have done to reduce your own expenses, what your current finances are, etc?
In any event, our firm is keenly able to assist those seeking a reduction and those opposing it.