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You are in the middle of your divorce when all of a sudden you were told that you are in arrears for child support …WHY?

The answer is because of Domestic Relations Law (“DRL”) §236B7.  DRL §236B7 provides 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 sum, you are liable for child support as of the day the Complaint for divorce was served.  Keeping that in mind you should pay your child support obligation from commencement especially if you are not residing in the home with your children. If you are still currently residing in the home, you need to keep this in mind and if possible, speak with your spouse about child support and receiving credits for payments.


In calculating any back child support that is due, the court will take into account any temporary support payments that you made-and can prove-pending the divorce.  Thus, if you are in arrears of $13,000.00 and if you can demonstrate that you have been paying child support every month for a total of $9,000.00, your arrears then will be the difference of $4,000.00.  Keep in mind also that if you over pay, you will not get the credit.  In other words, if child support for the year is $13,000.00 but you can show that you paid $16,000.00, your spouse is not responsible for refunding you the difference.


Any back child support must be brought up to date.  However, in the court’s discretion, you may be allowed to break up your payments 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 $16,000.00 in back child support ($1,000.00 x 16 months) the court, can find that this is too financially burdensome and, in its discretion, can break up your child support arrears into lesser payments until the total amount of arrears has been paid. Consequently, you will still pay the $1,000.00 court ordered support, plus any arrears until all your arrears are extinguished.


To avoid any child support arrears, or to diminish the amount possibly owed as arrears, you should keep detailed records of all support going to your spouse during the divorce process.  If you can, create a paper trail.  Pay your spouse with a check or money order and indicate what the payment is for.  Understand that if, the children do not reside with you the majority of the time, then you are not the custodial parent and you will be responsible for child support.  Speak to your attorney about potential child support liabilities and plan accordingly so you do not fall behind in your child support obligation and be forced to pay child support along with any arrears that may have accumulated.

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