As always, please review my disclaimer before reading this post by following the link above or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees. Federal employees face an unusual array of challenges when it comes to family law to begin with. Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs. Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).
The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay. There are options available to you, however, and I hope to cover those in this blog post.
Option 1 - Agreement
Perhaps the simplest way to solve this problem would be an agreement with the other party. If you are on good terms with your ex, this may be a viable option. You should contact your ex immediately to discuss the issue. A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.
Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.
Option 2 - Court Order
A court ordering support is required by law to consider only your "current" situation. If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly. Unfortunately, that's where the simplicity of this solution ends. Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard. An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing). Once the shutdown ends, you can then withdraw your motion.
This is a complicated process, however, and the odds that you will make a mistake without representation are high. If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.
Option 3 - Suck it up and Pay
If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee). There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.
Option 4 - Unilateral Non-payment
This is the most dangerous option. If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay. Maybe DCSE and/or your ex won't take any action, but there is a chance they will. If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest). You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own. There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.
Conclusion
The government shutdown presents a unique challenge to federal employees who owe support. The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it. Nonetheless, there are options, and you should know them before you take action. If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation. Your initial consultation is free for up to half an hour!
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