Over Paid Child Support: How you may be able to recover

While obtaining a divorce is the end to your marriage, the court orders that accompany the divorce are not set in stone.  As time goes on, your life will inevitably change: you may move, you may change jobs or receive a promotion, and your children grow. If things change significantly regarding your child related issues, it may become necessary to modify parts of the divorce judgment. Therefore, child support is certainly subject to changes as a result of life’s unforeseen circumstances.

In Massachusetts, child support is usually determined by inputting information, such as incomes, the number of children and health insurance costs, into a formula.  The formula will in turn decipher a number and that number usually becomes the amount of child support. Child support is not an arbitrary amount of money; rather child support is a methodologically calculated amount based on existing needs of the children and the abilities of the parents. It is most common that the custodial parent, with whom the child lives with for the majority, will receive child support from the non-custodial parent.

If your child support order requires you to make payments through Department of Revenue (DOR) and you send your payment directly to the other parent, the state will not know about the payment and records will indicate that you did not pay. As a result, automated enforcements may take effect, which could subject you to actions such as seizure of your bank account or income tax refund, revocation of your driver's or professional license, or a lien on your property.

If you are employed, DOR will collect your child support payments by wage assignment. This means your employer will deduct your child support payments from your paycheck and forward them directly to DOR. If your child support payments are not being made by wage assignment, you must send your child support payments directly to DOR. Payments should be made by check or money order, payable to the Commonwealth of Massachusetts.

However, frequently one or both parents vary the terms of the order without further consulting the court. This might take the form of overpayments, either intentionally or unintentionally, or directly paying a third party, such as a school or babysitter, rather than making payments to the other parent. Sometimes it is the case that both parties have agreed to a change in payment due to a change in circumstances or other unforeseen events. In such instances, it is crucial to notify the court, otherwise the state will expect you to pay the amount originally ordered. Problems arise when the paying parent asks the court for credit or reimbursement. However, under MGL c.273, s.1, Massachusetts does not recognize reimbursement of child support.

If one side believes it is time to change the child support amount, and the other side does not agree to the need for a change or the proposed new child support amount, then the side seeking the change must file a Complaint for Modification, an updated financial statement and various other documents with the court.  The side seeking the change must then obtain a summons from the court and serve that summons, and copies of all the other papers that were filed, to the other parent.  The modification will be pursued as its own case through the Probate Court. The case may have motions, case management conference, pre-trial conference, status conference and then a trial if the parents cannot come to an agreement. If there is a trial, the judge decides if child support should change and, if so, what the new child support amount should be.

One of the most important things to remember about child support is that the law does not allow judges to change child support that is already due and payable unless a complaint for modification has already been filed and served. Massachusetts’ laws strongly uphold the notion that there is no way to retroactively change the amount of child support for any time period before the service date of the court summons and complaint for modification on the other side.

What is definite in child support is that child support is fundamentally based on the needs of the child, the income of the parents, and the parenting time exercised. Providing a home and everyday needs of the child alludes to the custodial parent’s need for a greater amount of child support. It is most common that the custodial parent, with whom the child lives with for the majority, will receive child support from the non-custodial parent. Yet, while the child may have needs, the reality of the non-custodial parent’s economic status may not genuinely be able to afford those needs. A very common instance of overpayment of support occurs when the payor of child support suffers a decrease in income, does not immediately petition a motion to reduce support, and continues paying support under the current child support order. No payments in such instance may be reimbursed. Similarly, overpayment occurs when the payor exercises extra parenting time and waits a long time to file a motion to reduce support accordingly. Another issue of overpayment occurs in cases of voluntary overpayment. For example, if the payor is ordered to pay support through the Department of Revenue, but gives money directly to the recipient of support, they state will still require them to pay through the DOR as there is no way to confirm other payments without a filed modification. Therefore, making your payments directly to the Department of Revenue and following court orders will ensure that you are making the correct payment. Unless the court makes a change to the amount ordered, and how the payment is to be received, you must continue to pay the amount indicated on your existing child support order to the Massachusetts Department of Revenue.



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