Can a person get a credit for child support arrearage that accrued during the time he resided with the child, even where he did not seek a modification order in advance of time the payments were due? This question comes up a lot. Basically, let’s say you have a child support obligation and the child comes to live with you for a while. First and foremost, nothing is guaranteed, you must file a motion to temporarily abate the child support or some type of motion for modification or something like that. It is always best case scenario for you to file something with the court. But let’s say you don’t. Let’s say the child lives with you for about a year and you just stop paying child support because you don’t feel like you should have to because the child lives with you. The thinking is obviously logical, but courts are not always logical, obviously. In a case, a person was ordered to pay child support to the petitioner. The date of the order was 2003. In 2007, the parties began residing together with the child again. For approximately four and a half years between 2007 and 2013, they were residing together for periods of time. The respondent requested the court give him some credit toward the arrearage that accrued during those times. He did not seek a modification order, as the parties had mutually decided to reside together again, the respondent was contributing to the support of the child in the home. Obviously. The respondent was paying rent, electricity, food, everything like that. Now in this circumstance, my goodness I cannot explain to you how important it is for you to go and file something with the court. But if you have a situation similar to this, which many people do, there is case law that helped you out.
There is a long line of case law upholding the principle that “child support obligations are vested rights of the payee and vested obligations of the payor which are not subject to retroactive modification. What this means, is that it is extremely hard to get credit for child support prior to filing anything with the court. A party may be successful in seeking setoff of amounts paid against support obligations only in those limited circumstances where that party can show “compelling equitable criteria and considerations.” However, the courts have made special exceptions to past due obligations where there exists, extraordinary or compelling circumstances such as waiver, latches, INAUDIBLE [03:39], reprehensible conduct on the part of the custodial parent, etc. In one such case, the court found the obligor was entitled to a credit for the time the minor child had resided with him, even where he had not sought a modification order in advance of the time the payments were due. The court found that the child had been resided with the obligor, and oblige waiting for support payments during that time was a special circumstance which entitled the obligor to credit against his arrearage amount.
In summary, in the hypothetical facts I gave above, the respondent should be give special credit toward the arrearage for the periods of time he resided with the petitioner and child. According to Florida case law, respondent’s waiver of the support payments during those times and the support petitioner provided while in the home should be considered special circumstances which warrant credit, despite the fact that respondent did not seek a modification order in advance of the time the payments were due. Having said that, for some reason I have seen some judges still want that child support to be paid. I don’t get it. I don’t understand it. It may have something to do with the lady on the other side of the aisle crying and saying how broke they are. That should be irrelevant. If the child is with the dad for any significant amount of time they should not have to pay child support. The only way you are truly safe in that way is if you file something immediately with the court. But, as you can see from above, you are not out of luck if you do not.
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