Abating or Defense of Non Payment of Support and Maintenance
Feb. 25, 2021
One of the most serious problems that occur in today’s economic and employment climate is that people become obligated to pay child support and maintenance and then have a change of circumstances that prevents them from making the payments. If you learn only one thing from this, it is the child support and maintenance cannot be modified or abated retroactively. The use of a motion filed in the court which provides two things: first it provides the legal mechanism for abating or modify your obligations as of the date the court receives your motion. At the same time you file motion you will need to be sure that you have given proper notice, received a court date and time, and that you relate that information in the legally required form to your ex. Abatement or suspending support maintenance for a loss of income is probably easiest to do, but is fraught with all kinds of ways that it can go wrong for you.
The next problem to look at is typically the problem where you’ve got behind support or maintenance and is claimed as an arrearage. This is where factual basis can be helpful by showing your ex’s consent to the reduction or facts and circumstances which will provide you a defense on the issue of willfulness or intentionally violation of the rule.
One of the weapons that ex-spouse or the state representing the ex-spouse uses is indirect civil contempt. This is a powerful tool which changes the burden of proof from the ex-spouse to you on the issue of willfulness and with its accompanying contempt, arrearages, penalties and attorneys fees. In my opinion this is not the place for an unrepresented defendant. The use of the petition to abate or modify is a weapon that can raise issues that would be difficult to raise in a defense of the petition for contempt. For example, simply raising the issue that your ex-spouse agreed to a reduction would be best raised by you as the plaintiff in your motion to modify then raised as a defendant on a contempt petition.
There is one great lesson (in addition to give immediate notice) and that lesson is trying of possible to exchange written documents and notices. For example, if you use email to notify your spouse of a problem in making payments such as a reduction of income or an emergency, try to get her to respond that she not only understands and agrees to the temporary reduction. Easier said than done, but something you can do that will be worth serious dollars later.
© Arnold D Goldstein 2021 all rights reserve