by: Jim Duzak, JD
I’m divorced and have two kids (9 and 5). The divorce decree says that my ex can have the kids on weekends. It also says he’s required to pay child support of $700 per month. Three months ago, he was laid off from his job. He made one support payment after that but then stopped, saying he was broke. He then filed papers with the Family Court asking that the child support be suspended or reduced while he’s unemployed. But he still expects to be able to see the kids every weekend.
I told him that he can’t see the kids until he starts paying support again and brings the arrearage up to date. He responded to that by filing additional court papers claiming that I’m in contempt for violating the decree. By the way, he’s living with a woman who has a good-paying job and is basically supporting him. I don’t think he has any incentive to look for work. I can’t afford a lawyer and I know you can’t give legal advice, but do you agree with me that this is wrong?
I agree that it seems unfair that your ex should be allowed to see the kids when he’s not supporting them. But, under the law, being able to see the kids is not considered to be a reward for paying support. It’s a right that “non-custodial” parents have, unless they’ve forfeited that right by abusing, abandoning, or endangering the kids. And it’s the mirror image of the right that your kids have: the right to have an ongoing relationship with him as well as with you.
If you punish your ex by cutting off his contact with the kids, you’re also punishing your kids. The punishment may be unintentional, but it’s real. So you should put aside your anger and let your ex see the kids when he’s entitled to. It’s the right thing to do for your kids, and it will make you look less vindictive when the case finally comes before the judge. It’s always an advantage in court when you can position yourself as the “good guy.”
With regard to the money issue, child support orders can be adjusted upward or downward if circumstances have changed since the original divorce decree. Being laid off from work is certainly something that a judge might consider good cause for reducing a support order. But most judges are going to look hard at the situation to ensure that someone isn’t using unemployment as an excuse to avoid legitimate obligations. With child support, judges will often “impute” a certain level of income to someone, even if he’s not actually receiving it.
For example, a judge may say that your ex still has the capacity to earn the minimum wage, or more, even if he realistically can’t earn his former salary. The judge can also take into account his unemployment benefits. Your ex’s girlfriend, of course, does not have a legal obligation to support his kids. (In fact, since they’re not married, she has no obligation to support him, either). But when deciding support obligations, most judges will try to figure out who’s paying what in the household. If your ex is essentially getting a free ride, the judge may decide that he can afford to pay a larger portion of his unemployment benefits and his imputed income to his kids, than if he was living totally on his own.
I know this is a stressful time for you, “Angry,” but I don’t think things are as bad as they look right now. Please let me know how it turns out.
Jim Duzak, JD is a graduate of Boston College Law School, and practiced divorce law in Boston for over twenty years. After moving to Arizona, he became a full-time mediator for the family and divorce court in Phoenix. His experience in working with divorcing couples, plus his own life experiences---he was a 20 year-old husband and father and a single father for several years after his divorce---prompted Jim to write a book entitled, Mid-Life Divorce and the Rebirth of Commitment, that helps people avoid divorce by teaching better ways to communicate and resolve disputes. He is currently an advice columnist, relationship writer, and personal coach. Jim is a contributing expert at HopeAfterDivorce.org, DivorceSupportCenter.com, FamilyShare.com, LAFamily.com, and CupidsPulse.com.