NY Divorce: Courts Struggle With Changing Alimony & Child Support In Tight EconomyWhat if your ex-spouse, or soon to be ex-spouse, had been earning $200,000 a year, but now finds himself or herself unemployed due to employment cutbacks? How much will a court require him to pay towards alimony and child support when unemployment benefits are the only source of income? It's an issue that New York courts are struggling with in this tight economy and one NY divorce attorney says that their not necessarily handling in the fairest manner.
Old presumptions of child support modifications not working
Elliot Schlissel, a New York Attorney whose practice area includes divorce, estate planning and many others, says that, while there should be a presumption that if you have a job, lose it because you are laid off and are on unemployment that your child support should be based on what you receive for unemployment. Unfortunately, he says that it doesnt work that simply. He explained:
If you lose your job, you have to go into court, file a downward modification of child support and must prove: 1) that you lost your job, and 2) that youve used due diligence to obtain an alternative job and that youve been unsuccessful. It is more difficult than one would think to meet the standard of due diligence in order to get a downward modification of child support. I have many hearings going on now and I personally feel it is very unfair to the wage earner that loses his job to put him or her to such a harsh test.
Changing spousal maintenance equally as difficult
Changing spousal maintenance (what used to be called alimony) is equally as difficult, according to Schlissel. He told us:
In that situation, you have to prove not only that you lost your job through no fault of your own, but you also must show youve used due diligence, youve contacted employment agencies, youve gone online and used online services basically that youve done everything possible to find new employment and youve been unsuccessful before you can obtain a downward modification of support or downward modification of spousal maintenance.
It is a very difficult situation because the former spouse thats on the receiving end of the child support or the spousal maintenance really doesnt care whether the other party has lost his or her job; they just want their money and they generally take a very tough stand. The courts seem to be much more sympathetic to the party receiving the funds than the party earning the money.
An extremely difficult situation financially and emotionally
Schlissel says that's it's an extremely difficult situation all around especially during these economic times. Heres some fellow or some woman who loses his or her job. They now have to hire a lawyer and go through, sometimes, two or three days of hearings to prove that theyve lost their job, are looking for a new job and that theyre simply unable to find one. So, at a point in time when their finances are in their worst shape, theyre forced to hire a lawyer and spend more money.
It can be a very emotional time as well. Schlissel told us that he's been doing this for about 33 years and it never fails to move him especially now as New York's unemployment rate is at record high levels. He explained:
The problems that occur in a family when a party, whos the primary breadwinner is laid off causes pain for all the family members. The sacrifices that families have to make can be just gut-wrenching. Theres very often not enough money; pay the rent, pay the mortgage; put enough food on the table or provide for clothing and shelter. It's happening more and more due to the high unemployment rate which is hovering around ten percent in New York right now.