My husband is unemployed and says he can’t pay the child and/or spousal…….

Even unemployed parents have an obligation to support their children. The real questions are: how much does he have to pay, what will he have to pay for, and how long will the new situation last?

I’m assuming from your question that there is a court order requiring him to pay child and/or spousal support. Unless and until your spouse gets that order changed, each month he is obligated to pay you what the court ordered him to pay you. That means that if the court ordered your spouse to pay $500.00 per month in child support, and $300.00 in spousal support he owes you $800.00 per month – whether he is working or not. If he doesn’t pay that amount, then he will start to build an “arrearage,” or an amount that is past due for support. At any time, you can go to court and ask the judge to enforce the court order, and require your spouse to pay that arrearage, as well as the regular amount due to you each month. Chances are though, when you do that, he will then petition the court to decrease his support based upon his unemployed status.

In this economic climate, most judges are fairly sympathetic to unemployed litigants seeking a reduction in support. At the same time, however, judges realize that the person to whom support is owed, as well as the parties’ children, also need to be able to live. The judge is therefore in the unfortunate position of having to balance these competing needs. Under those circumstances, the court will likely reduce your husband’s support obligation, particularly if the original court order required him to pay more money in support than what he is presently earning on unemployment. However, the court will also probably require him to pay something to help support your children, and possibly you too depending upon all of the facts of your case, while he seeks new employment.

In addition to requiring your husband to pay something in current support, the judge may also require him to apply for a certain number of jobs each week, and return to court every month or so and present proof that he is actively looking for a job. Your husband may then have to keep returning to court periodically until he gets a new job. When he does become employed, child support will be re-calculated based upon his new earnings. Spousal support may also be re-calculated depending on his new situation, your situation, and the amount, type, and duration of spousal support that was originally ordered.

Karen A. Covy, J.D. is a divorce attorney and family law mediator in Chicago Illinois . She is the author of When Happily Ever After Ends, How to Survive Your Divorce Emotionally, Financially and Legally.