You have made the decision to get divorced. You have retained an attorney, filled out Net Worth Statements, attend settlement conference and finalized your divorce. You then find out that you that you are behind in child support. How can this be?!
Domestic Relations Law (“DRL”) §236B7 happened. It states that “…such order shall be effective as of the date of the application… and any retroactive amount of child support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which had been paid.” In other words, you are liable for child support as of the day the Complaint for divorce was served. For example, your spouse filed for divorce, and you were served with papers on March 1, 2022 and your divorce was finalized on March 1, 2023. If you did not pay for child support during this time as of March 1, 2023, you are in arrears for 12 months of child support.
In calculating any back child support that is due, the court will take into account any temporary support payments that you made pending the divorce. Thus, if you are in arrears of $10,000.00 and you can show that you have been paying child support every month for a total of $8,000.00, you are in arrears $2,000.00 per month.
Your back child support must be brought up to date. However, in the court’s discretion, you may be allowed to break up your payment into monthly installments in addition to the court ordered support. Looking at the example above, if you are ordered to pay $1,000.00 a month in child support and owe $12,000.00 in back child support ($1,000.00 x 12 months=$12,000.00) the court, in its discretion, can break up your child support arrears over time. Consequently, you will still pay the $1,000.00 court ordered support, plus the arrears until the $2,000.00 is paid off. This may entail paying an additional $100.00, $200.00 or any amount per month until the total amount owed is paid.
What if you over pay? Your children will be appreciative, however, you will not a receive a credit. In other words, if your child support obligation for the year is $10,000.00 and you can demonstrate that you paid $12,000.00, your spouse is not liable to refund you the difference.
Understand that if you are not the custodial spouse you will be liable for child support. Speak to your attorney about potential child support liabilities and plan accordingly.