Do I Still Pay Alimony If I Lose My Job?

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

(00:14):
I had a listener write in and ask, what if I am paying alimony and suddenly laid off? What do I do while waiting for a modification if I cannot afford to pay? Um, so in that particular instance, you really do need legal advice. You need to find the laws of your state. You need to contact an attorney because it can be situational. Um, I can tell you, uh, from a mediator standpoint, what I have seen and heard, and I have been involved with, at least in the state of Florida, um, when it comes to what the rules are. So in order to modify, uh, say for example, like child support or alimony, there has to be a significant material, permanent unanticipated change in circumstance to modify. So, um, how do you define significant? How do you define material? Really, that is up to a court, that’s up to a judge to define if they think that it’s significant in material.

(01:10):
But one of the biggest factors is that whole permanency. And so, um, I’m sure that, uh, my listeners are familiar with, uh, the year 2020 and this little thing we had called Covid, um, surprisingly enough, covid as, uh, significant and material and unanticipated as it was, did not reach the level for a modification because it wasn’t permanent. And so a lot of people were laid off. A lot of people lost jobs. A lot of people didn’t lose jobs. They just, the work just shut down where they, they, you know, they, they closed the business down, they closed the restaurant down, they closed the gym down, they closed down where you went to work and made money. And so, eh, yeah, you were suddenly laid off for a period of time. And so what I saw during 20 20, 20 21 was I saw a lot of people running to the court going, I have alimony and, uh, and or child support or both, and I need a modification.

(02:25):
Unfortunately, the courts looked at the statute, looked at the power that they had, and they said, sorry, can’t give you one. Now, on the flip side, the receiver of the child supporter alimony, they were filing motions for contempt enforcement going, they’re not paying me. Look, it’s very clear. They haven’t paid me in months. It’s behind. And they would go to court and ask for contempt enforcement. They were not granted contempt enforcement because it wasn’t willful or intentional. It was COVID-19, the world shut down. So it wasn’t that they were getting paid and decided to buy a boat or go on vacation and not pay the money. No, they didn’t even have enough for their basic bills and expenses, which was the case with many, many people. So what the attorneys did is the attorneys then sort of stepped back from the situation, went back to the basics, and looked at the statute and said, okay, wait a second.

(03:25):
Yeah, it’s significant. Yeah, it’s material. Yeah, it’s unanticipated, but it’s not permanent. Okay, so what can we do? And one of the things that they found, a remedy that they found successful was an abatement. So then what they did is they filed, they, they went from filing for a modification to filing for a temporary abatement. So what does that mean? That means it’s a temporary pause. That means that you can’t be found in contempt. No one’s filing things against you for not paying it. It’s a temporary pause due to whatever the situation is. So that could be like this question. It could be a sudden layoff of a job. Um, it could be something as severe as covid, um, or maybe it’s the next virus that’s released upon the world, but whatever it is, you know what, you know, that is what I saw that a lot of people started to file, and a lot of judges then started to grant temporary abatement.

(04:23):
So what does that mean? You know, as the second que the second part of this question was, what do I do while waiting if I cannot afford to pay? Now they said, waiting for a modification, you probably won’t get a modification. Uh, what will you get? You will most likely get an abatement. So what do you do? Well, that means that it’s not, you’re not paying it, uh, while you’re looking for a new job. And when you get your job, then you start paying it again. But what happens to those payments? So, you know, going back to COVID-19, you know what happens when you don’t make 5, 6, 7 payments because everything is shut down? Well, what happens is it goes on the back end. So say for example, that you have, you know, 24 payments that are due, and so it’s supposed to end by a certain date.

(05:11):
Well, what happens is however many payments you did not pay because of the abatement, well then those get put on the back end. And so, um, you know, what maybe should have been paid off in 24 months? Now it takes, you know, if you miss six payments, now it’s paid off in 30 months. Um, and so that’s all that that happens is it just gets put on the back end, doesn’t get modified. Now, what happens if, you know, and I’m, I’m sort of reading into this now, but we’ll, we’ll answer, you know, potential third part of the question that’s, that’s being asked, but maybe not, is what if I’m paying alimony suddenly laid off? And then what if I’m waiting for a modification and I cannot afford to pay? So let’s say for example, that making, making money make, you know, alimony is established. And for round numbers, let’s just say that this person’s paying a thousand dollars a month in alimony.

(06:05):
He loses his job. And, um, let’s say that he files for abatement, okay, great abatement is granted. He now is not paying the thousand dollars a month while he is waiting for a job, okay? Now he gets a job. So, um, when he gets a job, he has to start resuming the thousand dollars a month. But let’s say that his job actually is a lot less money than what he actually, uh, was making before. And so he then does file a modification because let’s say that the thousand dollars a month was based on him making 300,000 and now he’s only making 175,000. And that would potentially change then the alimony amount, well, it depends. It depends what the terms are of the original agreement in alimony. Was the alimony non-modifiable to the amount? Um, sometimes people will agree to a non-modifiable component, statutorily all alimony is modifiable, but sometimes people will agree that it’s non-modifiable.

(07:15):
So if you agree that it’s non-modifiable, well then too bad it’s not getting modified. But if it has not been agreed to that it’s non-modifiable, so it is modifiable, well then you still owe the thousand dollars a month until it is modified. Why? Well, because you have a court order until you get a new court order. So let’s say for example, that you get a new job and it takes, you know, and so you file your modification and it takes six months to get in front of a judge. And let’s say that during that six months, even though you’re making less money, you are still paying a thousand dollars a month. And let’s say that then in six months you get in front of the judge and let’s say that then, um, your alimony does get modified and it gets modified from a thousand to 500.

(08:03):
I’m using round numbers. Well, so then what does that mean? Well, then that means that prospectively, so going forward, your new alimony is $500 a month, but you may ask, but what about those six months that I was paying a thousand I had filed and asked the court for reduction, but I was paying the thousand, but I was making less money? Well, then you would most likely be entitled to a retroactive credit. So if you were paying a thousand, and there’s two ways to do, there’s a couple different ways, but two main ways to do this. If you were paying a thousand dollars a month for six months and then now it’s $500, well then maybe for the first six months going forward to eat up the credit that you’re entitled to for double payment and overpayment, well then you don’t pay for the first six months and then that eats up then the credit that you would be owed.

(08:55):
That’s one way to do it. Another way is if the receiver actually has the money, well then they will then owe you the, a lump sum payment back of the overpayment. Most people don’t because most, um, alimony recipients are simply living off of that using it, and they don’t have, uh, that to give. So usually that’s eaten up in a prospective credit, but, uh, but you would be entitled to a credit from the date of filing until whenever it is modified. So what do you do while you’re waiting? You, even if you can’t afford to pay it, you still pay it and it will get fixed forward and backwards. Uh, but you, but you need to talk to your legal counsel, uh, for that. And so, you know, hopefully that answers your question about what if I’m paying alimony and suddenly laid off? And what do you do while you’re waiting for a modification if you cannot pay? And, hopefully that answers your question.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q&A bonus episodes where we’ll answer your questions and give you a personal shoutout.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.