Every year, the fall colors remind Pat that a new child support struggle is coming. Pat works for a lawn care and snow plowing business and goes on unemployment every fall during the slow season when the grass does not grow and when it is too warm to snow. By now, Pat knows the drill: file for unemployment and wait – then receive the enforcement letter from the FOC. Pat performs the annual ritual knowing that by the time the FOC schedules a show cause hearing, the FOC will be collecting support plus a little something extra to repay the arrears.
Short-term changes in payers’ income present a unique challenge for parents and FOC staff. Ideally, when the support order is established for a person with seasonal unemployment, it will take into account actual yearly income over a period of time that compensates for periods of unemployment. But, while support may be set in an appropriate amount based on income, some people find it hard to budget in a way that makes it possible to pay their support during unemployment. Still others have difficulty when they have irregular short term unemployment (such as an illness). While modification procedures provide a means to adjust their child support, the time required makes modification ineffective.
For the incarcerated, moving for modification may provide relief but the parents will need to file, the FOC will need to investigate, and the court will need to hear a second motion for modification as soon as the incarcerated person is released. When a person’s employment is interrupted, the court may have trouble determining the proper earnings upon which to base the support. The end result can be an inappropriate support order that requires more FOC intervention and an increased burden on a family that is already stressed to ultimately right-size the order.
Fortunately, the FOC or PA can use the Uniform Support Order (FOC10) to address in advance foreseeable changes in income.
Form FOC10’s “Effective Clause” states that “Effective _________, the payer shall pay a monthly child support obligation for the children named above.” Usually this portion of the support order is completed by entering a date into the Effective Clause and entering the appropriate information into the corresponding grid. However, the Effective Clause does not have to be stated as a date certain in all cases. The Effective Clause may also be entered as a conditional statement. For instance, a valid Effective Clause may read: “Effective on the date payer notifies the Friend of the Court of [an event such as short term disability, incarceration, seasonal unemployment, etc.], the payer shall pay a monthly child support obligation for the children named above.” Furthermore, MiCSES allows the user to add a second Effective Clause and grid to FOC10 to reinstate support at another amount.
Using a conditional Effective Clause would allow the court to accommodate situations such as Pat’s by setting support higher during the work season and lower during the off season. The amount of support would be the same, it would just be variable so that it can always be paid through withholding when the payer is not able to budget on his or her own to pay during lean periods. Alternatively, the conditional order may be included as part of Paragraph 13 FOC 10 (“Other”) to the same effect.
Courts may employ this strategy any time an order is entered. The conditional order would reduce the likelihood of arrearages attaching to the case during future periods of lower income, but the likelihood of arrearages accruing during the pendency of the modification petition remains high. To remedy this situation, courts may apply Fisher[1] to retroactively modify a support order to the date the modification petition was served on the nonmoving party.
Child support workers should be aware, though, that once a conditional order is entered, a court’s ability to retroactively modify support will be contingent on the specific wording of the effective clause. If the conditional order becomes effective upon the change in circumstances, child support may be retroactively modified to the date of the change. If the conditional order becomes effective upon the payer informing the FOC of a triggering event, the order can only be implemented on the date the payer informs the FOC of the change notwithstanding that the event may have occurred much earlier.
Courts may adopt a uniform policy for entering conditional clauses or may determine on an individual basis whether an order is effective upon notice or when the event occurs. Notice clauses may be an effective way to encourage parties to promptly notify the FOC when a change in circumstances occurs. Change-in-circumstance clauses allow more flexibility to implement support orders when the parties have demonstrated an inability to reliably act in their own interests by reporting information to the FOC.
Conditional orders present courts with an efficient tool to help Pat and other seasonal workers avoid yearly modifications. This tool may be beneficial for short-term inmates, retail store owners, farmers, and other persons with seasonal income or short term interruptions in income. Child support workers should consider a conditional order strategy to reduce arrearages, improve the parties’ satisfaction with their orders, and ease the administrative burden of support modifications and enforcement that might otherwise occur.
If you have any questions regarding conditional orders or retroactive modification of a support order, please contact Bill Bartels or Paul Gehm at (517) 373-4835.
[1]Fisher v. Fisher, 276 Mich. App. 424, 430, 741 N.W.2d 68, 72 (2007) (holding that trial court has power to retroactively modify support obligations from date of petition); Clarke v. Clarke, 297 Mich. App. 172, 187, 823 N.W.2d 318, 32 (2012) (holding that the court can retroactively modify a support order only to the date the non-moving party received the petition, not the date the petition was filed).
