Q. My ex has received an overpayment of child support. How do I get it back? My child support modification has been awarded. The amount went down by $211 a month. The judge back-dated the modification to 03/01/2016. However, I paid the old amount in full for March 2016 and half the full payment in April 2016. I spoke with DES and they said all the monies have been released to her. How do I recoup the overpayment monies from her, or is this lost money?
A. Your question brings up several interesting points about child support here in Arizona. In Arizona the Court cannot modify child support retroactively. That simply means that if you fail to file a modification when circumstances change, the Court will not modify based on that changed circumstances back to the actual change. Instead the Court will modify from the first of the month following your petition for modification.
For Example: A husband and wife get divorced. They have one child. The parties share parenting time with the child equally, therefore there is no child support paid by either parent. On January 1, Father starts a new job in another state (Iowa). Father is no longer sharing parenting time on an equal basis. Father now only sees the child one weekend a month.
Mother does not file to modify child support. In June Father files a modification of parenting time so that he can have parenting time on a long distance plan over the summer and school breaks. Mother files her response asking for child support for those months between when Father left the state and when he filed his petition (January – June). The Court must deny Mother’s request unless Father agrees to it.
If the Court were to grant Mother’s request it would be a retroactive modification of child support which is not permitted by Arizona Law. The Court would start the new child support order July 1 as this is the first of the month following the date of Father’s petition. If it is early enough in the month of June it is possible the Court could start the new order June 1.
Q. Okay, but what is the difference between that example and the Court granting my modification and starting the new order in March when it is now April?
A. That is a great question. The difference is that when there is a pending petition for modification, the Court is permitted to go back to the first of the month following the service of the petition rather than when the trial or agreement is reached. If you think about it, this makes sense (which you can’t always say with child support). The idea is simple. If you file for the modification based on a changed circumstance and the other party were simply able to delay the hearing indefinitely, you would lose out on all of those months in between. This way the Court can give you some relief when the case is resolved. This unfortunately does not mean that you can simply pay less in support during this period. You have to pay the full amount of support throughout the pendency of the Petition or you can be subject to enforcement actions. In the prior example Mother failed to act, which resulted in her being unable to go back and get the support from those months before Father filed.
Q. Okay, but why can’t I get my money back for the months that the Court has determined that I overpaid?
A. This is a complaint that I hear all the time in my practice. Unfortunately, this is a case where the system is just unfair. The idea/policy does make sense. The Court wants to make sure that the child is supported until the order terminates. If there is additional money due to a modification, the overpayment can be kept to cover any future non-payments or reduced payments.
For example: Father filed to modify a support order and the order is reduced by $500. He filed the petition six months ago, so he has now overpaid by $3000. The child support clearinghouse will first look to see if there is any back support still owed. Here Father owes $1000 in back support (arrears). The overpayment will first be used to pay that back support. Now there is $2000 left in overpayment.
The clearinghouse can hold onto that money until the child reaches 18 if the money has not been distributed. If the money has been sent to the other party, you still cannot get the money back until the order terminates at 18 or graduation from high school. This protects the parent receiving support since he/she does not know what the court will decide on the modification. The Court would not want that parent to then have to pay the paying parent back out of child support, nor would it want to risk depriving the child of support in order to pay the paying parent back.
Q. So Mom just gets to keep my money forever? Why did I bother even filing?
A. First of all, if the Court granted your modification and your support has been reduced moving forward, that is why you bothered filing. The reduction should help you deal with the change in circumstances that required the modification to begin with. The Court also does allow you to get the money back when the order terminates.
25-527. Child support; overpayment; reimbursement
- An obligor whose obligation to pay support has terminated may file a request for reimbursement against the obligee for support payments made in excess of the amount ordered. The obligor must file the request with the clerk of the superior court within twenty-four months after the termination of the obligation.
- The court may enter a judgment for reimbursement against the obligee if the court finds that the obligor’s obligation to pay support has terminated and that all arrearages and interest on arrearages have been satisfied. The court shall send a copy of the judgment to the department or its agent for title IV-D cases.
- The obligee must pay the judgment directly to the obligor and not through the clerk of the superior court or the support payment clearinghouse.
- A judgment entered pursuant to this section does not constitute a support judgment and is enforceable only in the same manner as a civil judgment.
The key is that you must file within twenty-four (24) months of the order terminating or you are barred from collecting. I know this is not what you would like to hear, but it is better knowing your situation and making a plan rather than not knowing and potentially losing your ability to collect. I do wish you luck with this situation and as always, if you have additional questions you should speak with a family law attorney.