If you find yourself in the position that you cannot pay your child support or alimony obligation due to circumstances beyond your control, such as the loss of a job or extended illness or medical care due to a serious injury or accident, there are legal remedies available.
First, it is important to understand that you need to seek legal relief at the commencement of the circumstances which are interfering with your ability to pay your financial obligation. You cannot wait until you are behind and have substantial arrears before you file a court action.
Also, it is important to realize if you file timely, then you protect certain assets you might have as every person who is obligated to pay any type of support has some protection against liquidating all assets to pay support obligations. If this were not the case, the paying person would eventually run out of assets and it would not be a long term remedy.
Furthermore, taking this legal step can protect you against a contempt action being filed against you. A contempt can result in arrears, statutory interest, attorney’s fees and costs for the other party and even incarceration. This is definitely something you want to avoid.
In any event, one remedy is to file a modification action. This remedy is available when the life event rises to the level of a permanent, unanticipated and substantial change in circumstances. One example might be an accident or serious illness which causes the paying party to be permanently unable to pay any type of support, or a limited ability to pay support. In this instance, there is no real likelihood of improvement, and thus, if the situation is permanent, then a permanent modification is a legal option. Again, this can be a reduction in the support obligation or a termination of the support obligation.
Second, a paying party can ask the court to abate support or hold it in suspension. This is a common remedy for child support but can be used for both child support and spousal support. This type of remedy is available when the inability to pay is temporary. Again, maybe an illness or injury is preventing you from working. This may be a temporary situation where you will be able to return to work when you are well, or when you have completed a rehabilitation program. So, the focus here is temporary.
The court has the discretion to reduce or eliminate the support obligation during this time, depending on the facts of the case and the nature of the inability to pay. Certainly, if the paying party were seriously injured and in a coma, the court would likely suspend the support obligation altogether until the paying party is in the position to again generate income and pay. Alternatively, even if a party is in prison or jail, that party may be entitled to an abatement or suspension of child support. It depends on the length of incarceration. Even if support is not forgiven, the incarcerated person cannot be held in contempt while incarcerated because the inability to pay is truly involuntary during the period of the incarceration. The court would not likely forgive the payments altogether. Instead, an arrears would accumulate during this time, to be repaid when the person is again free and able to work.
In sum, there are remedies available to provide relief to persons who have support obligations when life events interfere with that obligation. In order to get relief, it is imperative that an action be filed as soon as is possible after the change of circumstances.
