What in the World Happens Next? How Family Law Attorneys Should Plan Now for Alimony and Child Support Case Modifications

By Tonya Graser Smith

The economic side effects of the coronavirus pandemic on divorced or soon-to-be-separated clients can’t be ignored. As family law attorneys, we know the flood is coming.

We see the tidal wave. We see the stress of family and work, the emotional imbalance, the inability to make decisions, the very quick accusations that one side or the other is acting crazy. We see our clients crumbling into tears with non-case related issues like trying to get their Instacart or Shipt groceries delivered on time and making sure their kids get on their Zoom classroom meetings.

Have you seen this photo—the Netflix binge-worthy “Breaking Bad” characters standing in front of a huge pile of cash designated for divorce lawyers and barbers in the post-corona world? It’s crass, but when stuff goes bad, attorneys are called in. We know this. Plus, we know the pent-up demand from stay-at-home orders will make the volume—for lawyers and barbers—even higher than before.

We as a Family Bar need to be ready—ready to be advocates, but in a way that is different than before this public health crisis.

Our challenge has been and will continue to be to help make it better, not worse. So how do we do this when all of the strategies and litigation tactics we know and trust are unavailable or severely limited right now? For example, mediation sessions by Zoom are not as effective as in-person, face-to-face mediation meetings. Well, we start by talking to our colleagues as our colleagues. Our colleagues are not our enemies, and we are trained in the art of advocacy. That doesn’t mean only in the courtroom, but leading up to the courtroom and outside of the courtroom when the courtroom is not open.

If you haven’t heard yet from clients who suddenly can’t make their child or spousal support payments right now, you will soon. At last count, more than 36.5 million Americans are unemployed, and the jobless rate is rivaling that of the Great Depression.

When clients call to say they’ve lost their job or their hours have been cut and they fear they won’t be able to make their monthly child support and alimony payments, lead with communication—communication to opposing parties and opposing counsel. Start the conversations.

Or maybe your clients are on the receiving end of those payments, and the ex has advised that these payments will be a challenge. If you are on the other side, listen, darn it. Stonewalling the other side could only cost your client more time, money and emotional damage in the long run. In other words, model the behavior you hope to see in your client and your client’s former partner.

Communicating early and often is key.

Advise clients to speak with their ex-spouses as soon as any life event or global crisis occurs that might hinder their ability to pay their monthly support. They might be able to live off savings for a while, but they need to give their ex a heads up that their economic situation has changed. Advance notice gives everyone a chance to prepare—mentally and financially.

The spouse who is obligated to make support payments will want to ask for modification to those payments as soon as possible. You as the attorney should communicate that this will not be a quick fix. These requests take time to go through court even when there are no back logs due to a public health crisis. Remember, during the 2008 financial crisis, it took about a year from the time that clients had a drop in income until they realized they needed to modify payments and were able to actually modify their support either in court or by consent. If we can be proactive with our clients, our clients will be happier with our work!

File for modification ASAP. We must make sure clients understand that support bills will continue to accrue, whether or not they can pay them, so it’s best to get in line to take it up with a judge. Encourage your client to communicate with their ex that if their situation improves, they will, of course, withdraw their modification request.

With open communication, creative settlement is possible.

Of course, clients don’t have to wait for a judge to rule on whether to modify payments. When the exes can communicate, they can take control of the situation. The clients, together with us as their attorneys, can negotiate a new payment and for how long and under what terms. While we attorneys must still draw up the right paperwork to make it all official, the clients will still pay a lot less in legal fees. Now is not the time to rack up big bills that we know our clients cannot afford to pay us.

For clients who aren’t on great terms with their ex, just remind them to keep a record of their attempts to work it out directly. I have to believe a judge could look more favorably on the party that tried to solve problems and communicate.

Communication and creativity. Our profession has come a long way from writing contracts with ink and a quill pen. We must continue to adapt as professionals, so we can best serve our clients. We must pivot from our usual tools in our toolbox—for now.

Communication and creativity. These qualities are needed now more than ever.

Tonya Graser Smith serves as the Alimony Committee Co-Chair.