To combat the effects of the COVID-19 pandemic and make life easier for California residents, the Supreme Court of California has released consistently updated emergency orders that modify a number of laws.
California Emergency Rule 13 modifies how courts handle requests for child support and spousal support modifications. Under the old rule, a person seeking to modify an existing order for support could only seek retroactive modification of the existing order, to the date the motion was filed. Under the new rule, retroactive modification can apply to the date the written motion was served – irrespective of when it was filed. Because the courts are mostly closed except for emergency hearings, in most instances there have been limited to non-existent opportunities to file a new motion.
Due to COVID-19, many parents find themselves in an unforeseen position of hardship, making them unable to meet the obligation of their current child support or spousal support order, or they find that the current order is insufficient to meet their needs, due to loss of income. Emergency Rule 13 attempts to address this problem by giving courts new authority to make a future support order retroactively apply to the date the written motion was served rather than the date it was filed.
Prior to this newly enacted emergency rule, individuals interested in changing an existing order for support found themselves between a rock and a hard place. The current orders do not reflect their economic circumstances but the courts are closed so they could not file a motion to cure this injustice. Inaccurate support orders needed changing, but the Court was not accepting new filings. Making matters worse, most courts now have a significant backlog of cases due to COVID-19, and any new cases that get on calendar may have filing dates well after they were mailed in. The end result is that many parents and former spouses who previously found themselves unable to seek justice are now better protected by this new rule. At least when the dust settles and the Court has heard the request, the period of time most affected by the COVID-19 economic hardship will be included in the Court’s determination of the requested modification.
Support order modifications or terminations can now be retroactively applied to the date the written request for modification is served.
So, for example, let's say you're furloughed due to COVID-19 and at least for the period of furlough you cannot pay your current child support obligation. If you try to file for a downward modification of child support on May 1, you won’t be able to because the Court is likely closed. Under the new rule, you don’t have to wait for the court to rew-open and take your filing. Instead, you can reserve your place in line, so to speak. Under this new rule, if you write up your request for modification of support in the appropriate format, and SERVE it on the opposing party, you can then file that written request when the Court re-opens and if you can prove it was served, when the the Court actually hears the matter sometime in July, the Judge can make the new orders effective as of May 1. (Just be sure someone over age 18 who is not a party to the action does the actual service!)
It could take months for the court to consider the full backlog of cases waiting to be filed and those waiting to be heard. Sacramento County recently reported that more than 3,000 existing hearing dates were rescheduled due to COVID-19 shutdown. If you have to wait at the end of that line, the very same economic disaster that caused you hardship might be resolved by the time you see the judge.
This new rule recognizes the unfairness of three hardships: the personal financial hardship created by the lockdown, the injustice of a support order which does not reflect that personal hardship, and the absence of remedy to change that order. Under the new rule, the second and third hardships can be addressed, even if not immediately, by allowing the court to apply new child support and spousal support orders, retroactively.
Whether a party is paying or receiving support, if an upward or downward modification of support is appropriate, particularly because the income of either party has changed due to COVID-19 lockdown, that party should consider preparing and serving a motion to modify that order – even if the new terms would apply only for a few months.
If you need help filing for a child support order modification, contact us online or give us a call at (916) 299-3936 to receive a consultation with our team.