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

December 19, 2006

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.

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