You and/or your spouse have made a decision to get divorced. You have retained an attorney, filled out Net Worth Statements and attempt to resolve your matter by attending a settlement conference. During this conference you find out that you that you are behind in child support payments …HOW?
Domestic Relations Law (“DRL”) §236B7 is the reason. 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 sum, 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 February 1, 2021. Your divorce was finalized February 1, 2022, but you did not pay the appropriate child support. As of February 1, 2022, you are in arrears for the difference between what you paid in child support from February 1, 2021, and what you should have paid in child support for the 12 months from the time of filing until the time your divorce was finalized.
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 if you can demonstrate that you have been paying child support every month for a total of $8,000.00, then you are only in arrears for the difference of $2,000.00. What if you over pay? Your children will be appreciative however, you will not get the credit. In other words, if child support for the year is $10,000.00 but you can show that you paid $12,000.00, your spouse is not responsible for refunding you the difference.
Your 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 $12,000.00 in back child support ($1,000.00 x 12 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.