In the wake of COVID-19 and Governor Whitmer's Executive Orders 2020-21 and 2020-42, millions of people find themselves with limited or no income. What does this mean for their existing child and spousal support orders? Current orders remain in place, and arrears will accrue based on the amount ordered. The Family Support Act requires the Friend of the Court offices to review child support orders not less than every three years, however, the act allows for more frequent reviews upon a substantial change in circumstances.
If the payor and payee can reach agreement for temporary modifications, they should put them in writing and submit revised Uniform Child or Spousal Support Orders to the court for entry. It is important to check the "Temporary" box at the top of the order form, and to include language in the order that the parties are "preserving the right for retroactive modification". During this time of uncertainty, many people do not know if they will get unemployment benefits, or when or how much, or for how long. As of today, we are still not sure of the details of how the Federal CARES Act will supplement state unemployment benefits or how and when the Federal government's stimulus checks will be disbursed. Once these questions are answered, the temporary orders can be adjusted later in the year.
If both sides cannot reach agreements, they should consider immediately filing a motion to modify their support orders. Though most courts are not able to handle anything beyond emergency filings, they are still processing filings, and a motion will at least preserve the date for retroactive modification. This is important since the law does not permit retroactive modifications of support orders until a motion is filed and served on the other side. Even if the support numbers are not resolved for several months, the new amount will be effective retroactively, and will minimize the arrearage amount. Most Friend of the Court websites have information on how to file motions to modify support. In the meantime, payors of support should continue to pay the ordered amounts if they can, or some amount that is affordable so that they can avoid enforcement measures as arrears continue to build.
Ottawa County is allowing anyone who has a lost a job or income due to COVID-19 to call or email their Friend of the Court investigator and request a joint phone conference to review child support for modification (no motion or appointment needed). They will promptly enter orders on agreements and will refer any disagreements to a phone or video conference with a referee. Parties in Ottawa County can also notify their Friend of the Court regarding changes in child care and health insurance expenses due to COVID-19, and they can make adjustments to orders without the need to file motions. In other counties, people will need to file motions to modify support and specify a change in circumstance as to child care payments or health insurance, if they cannot reach temporary agreements.
There is a caveat for people who have non-modifiable spousal support orders, as the court is not likely to modify such obligations. Also, both payors and payees should carefully consider modifications of pre 12-31-17 spousal support orders, as some tax experts have said that modifications will not affect the taxability of support payments absent express agreement, and others disagree.
The Michigan Supreme Court, State Bar of Michigan, the local courts, the state legislature and attorneys are working together every day to improve access to the courts and address people's concerns about support, filing deadlines and enforcement/modification of orders during this crisis. In addition, the Michigan State Disbursement Unit remains operational and will continue to process payments as received.