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January 05, 2021 Child Support

Support in a Pandemic & Broadening Borders

By Justin Soulen, Kerianne Kemmerzell, and Samuel Thomas

With child support being a common economic issue in family law cases across the nation, and as litigants continue to become less limited geographically due to the increased ability to work remotely (which will continue to be the case due to the pandemic), it remains as important as ever to remain knowledgeable as to: 1) how the courts are addressing the unique pandemic-related support issues; and 2) the potential differences in the applicable laws of neighboring states.

Practitioners need to remain informed as to how the pandemic and the various forms of economic aid might affect their support cases.

Practitioners need to remain informed as to how the pandemic and the various forms of economic aid might affect their support cases.

Credit: Gustavo Fring via Pexels

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Support in a Pandemic

As COVID-19 continues to affect the entire country, and with a second economic relief package around the corner, practitioners need to remain informed as to how the pandemic and the various forms of economic aid might affect their support cases.  By way of limited example, practitioners should consider some of the following issues:

  1. Are stimulus payments being included as income?
  2. How do PPP loans or other grants affect the income available for support for a business owner?  Is it relevant whether or not the loan is forgivable?  Are the courts waiting to see if the loan is actually forgiven?
  3. What if a litigant refuses to take advantage of economic aid (e.g. unemployment benefits or a forgivable loan) available to him or her?  Can those benefits be imputed to the party’s earning capacity?
  4. Will the court modify a support order due to a temporary fluctuation in income due to COVID-19?
  5. How can I effectively establish the earning capacity of an underemployed party when job availability may be limited during the pandemic?

If one thing is clear from our brown bag discussion and the CLEs on these issues, these determinations are not being handled uniformly by the courts.  Practitioners should be sure to be as prepared as possible to confront these issues for their clients and local CLEs can be a great resource for attorneys to hear from the bench as to how these ever-changing issues are being addressed.

Expanding Borders & the Effect on Support Cases

COVID-19 has made remote working the new norm in most states and it is possible that this new trend will continue long after the end of the pandemic.  Working remotely has had wide-ranging effects on the population and it has reshaped real estate markets as individuals no longer need to live in close proximity to the workplace.  From a support standpoint, this new phenomenon has opened the door to jurisdictional issues as litigants may be more likely to move into a neighboring state now that they no longer need to stay close to their jobs.  Practitioners need to remain informed as to the differences in the laws of the states where they practice and the laws of neighboring states.

The varying guidelines in different jurisdictions may make one jurisdiction more or less appealing for a client.  The differences in each state’s statutory definition of “income” could result in a significantly different support award.  By way of limited example, all (or almost all) states include the following as components of a party’s income: salary and wages (including commissions, fees, tips and severance pay), investment income and distributions from pensions and annuities, rents and royalties.  States differ, however, regarding the treatment of other common forms of compensation, including overtime pay, recurring gifts, inheritances and deferred compensation and whether they should be included as income available for support.  Additionally, some state guidelines provide for a support obligation to terminate upon a child’s graduation from high school, while others provide support through the age of 21.

Failing to recognize even the limited differences summarized above could be costly for a client, or, better yet, could be tailored to benefit the client should the opportunity arise.

Due to the ever-changing practices in different jurisdictions during these unique times, practitioners need to remain vigilant so they are prepared to address these issues for their clients.  In our experience, local bar associations and CLEs have been extremely valuable resources for attorneys seeking to stay current with the applicable support laws, procedures and guidelines.

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Justin W. Soulen

Esq., Philadelphia, PA

Hofstein Weiner & Meyer PC

ABA Family Law Section Child Support Committee Co-Vice Chair

Kerianne P. Kemmerzell

Esq., Baltimore, MD

Tydings & Rosenberg LLP

ABA Family Law Section Child Support Committee Co-Vice Chair

Samuel E. Thomas

Esq., Athens, GA

Law Office of Samuel E. Thomas

ABA Family Law Section Child Support Committee Chair