Can I get future credit for past overpayment of child support?
Published on February 8, 2009 by john
This question arises regularly in child support cases. The facts are usually something like this; former spouses calculated child support incorrectly and now the one that over paid wants a credit. This usually results from a miscalculation of income or credits (for payment of marital debt or insurance payments). As is often the case with legal questions, the answer is: Maybe.
In dissolution and custody proceedings, and specifically modifying child support obligations, the trial court has a large amount of discretion. This means that the judge can use her judgment to reach a fair result as long as the judge does not stray too far outside the boundaries and "abuse their discretion." The specific ability of the judge to grant credits against future support has been recognized since at least 1974 and was reaffirmed in 2005. While credits against future support may be permitted, retroactive modification is specifically prohibited.
Credits are available against future support if (1) there was an overpayment of support, (2) the party requesting the credit hasn't done anything inequitable, and, (3) it seems that if the overpayment went on for many years, the right to a credit may be deemed waived. In a 2001 case, the Court of Appeals found that a court that granted a credit had abused its discretion because the father had overpaid for nine years, voluntarily, he had failed to raise the issue of overpayment until the opposing party sought to increase his guideline income, and the fact that, due to an understated insurance premium, may have actually underpaid. As you can see, there are many factors that will weigh in the balance when the judge is considering whether to grant a credit. The number one way to assure you don't receive a credit is to not ask for it! If you believe that you are entitled to a credit due to overpayment, that should always be included in the request to modify support.
Each case is different due to its unique facts. If you have questions about the calculation of support, you should our office. You can direct your questions to the owner at John@JohnHGraves.com. We lookd forward to being of service to you!