Don't Stay the Course: The Dangers of Not Modifying Your Child Support Obligation

According to a report from the U.S. Department of Labor Statistics released on Friday, October 22, 2010, Nevada's unemployment rate held steady in August at 14.4 percent, which is a record high for the state. Nevada even beat out Michigan as having the highest unemployment rate in the country. Making ends meet is tough in Nevada.

If you are one of the many Nevadans who have lost their job in this ongoing financial storm, you should be aware of the dangers that may arise when it comes to your child and/or spousal support obligation. Contrary to what you might believe, job loss is not a legal basis for you suddenly stop paying child support or alimony, nor is it an excuse for you to start paying less than your support order requires.

If, when facing a sudden loss of income, you choose not to pay your support obligation or decide to pay only a portion of it, the obligation will not go away. Instead, it will accumulate in the form of arrears. If the non-payment or underpayment continues for any length of time, the arrears will ultimately pile up into a large monetary judgment in favor of the other parent and/or former spouse. Such a judgment cannot be discharged in bankruptcy. In the case of child support, the arrears will also bear interest and penalties from the date you begin missing or reducing your payments.

So, what do you do in face of unemployment or sudden drop in monthly income? The answer is not to stay the course with an outdated or excessive support order. Instead, you should file a motion with the family court asking to reduce your monthly support obligation. In Nevada, the district court has authority to modify a support order upon the finding of a factual or legal change in circumstances since the entry of the last support order. Rivero v. Rivero, 125 Nev. Adv. Op. 34, 25, 216 P.3d 213, 228 (2009). Specifically, Nevada statute provides that a change of 20 percent or more in the payor's gross income constitutes changed circumstances requiring a review for modification of a support order.

Given Nevada's now record unemployment, family court judges are sympathetic to the issue of joblessness and, in this economy, do not typically question parties' claims that they have lost their jobs due to circumstances outside their control. In other words, a reduction in hours, a lengthy furlough, or actual unemployment provides the change of circumstances upon which the family court may modify your support obligation.

It is important, however, that you take immediate action. Nevada statutes prohibit the family court from retroactively modifying a support obligation. As such, any modification the court might grant will begin, at the earliest, as of the date you file your motion, not the date that you began to suffer financial hardship. Waiting until your financial condition hits a critical mass is, therefore, not an option.