Over-Payment of Child Support Can Only Be Re-Couped Against “Add-Ons”

Motions for modifications of child support are generally effective retroactive to the date the application is made. While the application to modify a support payment is pending, the non-custodial parent is urged to abide by the existing support order.

If an upward modification is granted retroactively, the parent paying support is ordered to pay the arrears that accrued from the date of the application to the date of the order.

But what happens if the parent paying support is current in making support payments under an existing order and is granted a downward modification? There would have been an over-payment of support. Could the parent paying support further reduce the child support payment to recoup the overpayment? The Appellate Division, First Department answered that question with a unanimous “No.”

In the case Coull v. Rottman, the Court said that it would violate public policy to allow the parent paying support to take a credit against future child support payments in order to re-coup the over-payments. Instead, the Court ruled that the parent paying support is only entitled to re-coup the over-payment of the child support payments against his/her share of the statutory add-on expenses – the portion of child support intended to cover child care and a child’s educational and special needs.

5 Responses

  1. charles donald
    i had a upward modification, in 1998 from $215.00 a month to $729.00 based solely on the information the custodial parent gave. stating my net income was $3,750 a month and hers being $2700 amonth. they alowed her to do this and needless to say i havce averaged $8,000 to $12,000 dolars a year salary. she could do this because this was a interstate case and i wasnt present. also because of that, my arreareges rose to $33,000 in back child support. even though she has gotten 50% of my earning for 8 years. and she has earned over $40.000 a year. mi have receipts for over $48,000 in child support receipts. but i owe $52,000 in back child support for 1 child. she lied on every form she signed and i can proof it. what can i do.
  2. rick
    I have been paying support for 9 years and have been ging the mother cost of living raises every 2-years. I resently review my case and have found that I have not been getting credit for medical insurance in addition to the 120 overnight that I have been having with my daughter per year. This apprease to be the result of the an error that the court cleck is reponcible for. in addition to my counsel. What is the recomened recorce?
  3. rick
    I have been paying support for 9 years and have been ging the mother cost of living raises every 2-years. I resently review my case and have found that I have not been getting credit for medical insurance in addition to the 120 overnight that I have been having with my daughter per year. This apprease to be the result of the an error that the court cleck is reponcible for. in addition to my counsel. What is the recomened recorce?
  4. bobby
    i have two kids 21 and 18 years in south carolina. i have missed some payments over last 14 years, Iave paaid 3 yeaars to much for my 21 year old can this overpayment be applied to balance.
  5. Steve
    My ex-wife and I both live in and were divorced in Vermont. During the temporary divorce order my ex-wife was given over 3700 per month, 1500 of which direct payment to her; the rest was towards her (and my children's) expenses. The final order was 750 a month for 2 years, dropping down to the state guidelines of 558 per month. I was told that the overpayment during the temporary order can be credited towards my current payments. Is this true in the state of Vermont? And if so what is the statute for this?

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