By Leslie Shergill
One unexpected phenomenon resulting from the COVID-19 pandemic is a mass exodus of people leaving their jobs, frequently referred to as ‘The Great Resignation.’ When support is involved in a family law matter, how can a party’s resignation affect future support payments and calculations?
If the parties have minor children together, the starting point for the court is Family Code section 3900. It states that both parents have an equal responsibility to support their children “in the manner suitable to the child’s circumstances.” Those “circumstances” are largely reflected by the lifestyle built from the parties’ respective earning histories and earning capacities, but each case is unique and has other circumstances the court may consider. In general, though, if the payor of child support (the person paying support to the other parent) resigns from their job, the current child support order remains due and owing until a new order for child support is entered. This new order can be in the form of a written agreement (Stipulation and Order) filed by the parties or by the court itself after a hearing and/or trial initiated by the payor filing a motion asking the court to change the current child support amount. If a new order modifying support is entered, the court may make the new payments retroactive to the later date of either the requesting party’s unemployment or service of the motion to modify support on the other party.
Similarly, if a party wishes to change the amount of spousal support because of their resignation, the current spousal support order remains due and owing until a new order takes its place. If a party is requesting to modify post-judgment spousal support, the court must consider each of the Family Code section 4320 factors, including the “earning capacity” of each party as opposed to their actual earnings, before possibly entering a new order.
A request to modify support based on a party’s job resignation requires a nuanced argument customized to the specific details of the case.
Nothing in this blog is intended to constitute legal advice and your interactions with this blog do not result in the formation of an attorney-client relationship. All matters are different and, as such, nothing in this blog is intended to guarantee, warrant, or predict a specific outcome.