In a case where a husband abandoned his wife and children and failed for nine years to pay any child support, a Court ruled it was appropriate to set off the husband’s unpaid child support obligation against his interest in marital property. Since the husband failed to pay child support for nine years, his interest in the martial home was set off against the amount of unpaid support. As a result, the Wife was entitled to full possession and title to the marital home.
In the casev. ( N.Y.L.J. 4/9/07(subscription required), Justice Darrell L. Garvin ruled that the husband’s abandonment of his family and failure to contribute any child support created a “substantially unequal burden on the [Wife] to the benefit of the [husband]. This benefit of the non-contributing spouse constituted an unjust enrichment which should be rectified.”
Applying the child support guidelines to the Husband’s income at the time he abandoned the family, the Court calculated the amount of unpaid child support arrears and the husband’s share of the child care, educational and medical expenses even though the Wife had not previously obtained an order requiring the payment of support.
Since the child support arrears exceeded the value of the Husband’s equitable interest in the marital home, the Court transferred title to martial home to the Wife.