Is it lawful for a court to excuse an arrearage from past due child support to the date when the children respectfully reach the age of majority rather than the date of filing the petition to modify?

Is it lawful for a court to excuse an arrearage from past due child support to the date when the children respectfully reach the age of majority rather than the date of filing the petition to modify?

A hypothetical situation: Client made unsuccessful attempts to modify his child support obligation at the time each of the three children involved reached the age of majority. While a petition to modify the child support amounts should have been filed earlier, the law does not preclude the court from excusing the support arrearages that have recently accumulated. These arrearages only recently began to accumulate and all the arrearages are for children that have attained the age of majority. The language of the final judgment clearly indicates it was not the trial court’s intention, at that time, for respondent to still be paying support for the children. 

Generally, the date of the filing of the petition for modification is controlling, and the courts grant relief retroactive to that date. However, there are exceptions the court may consider for equitable purposes. The following three equitable defenses may be appropriate grounds for relief: (1) Payment…a direct payment is made to the payee because of the exogenesis of the family situation or a family emergency; (2) No further obligation to pay support - - a minor child reaches majority, marries, enters the armed services, or dies, or a former spouse receiving alimony remarries or dies; or (3) Change of custody - - a full change of custody has occurred and the former custodial parent no longer supports the child or retains physical obligations related to the child. There may be other equitable defenses that can be raised based on other types of extraordinary circumstances. The court emphasizes that the underlying purpose of this process is to ensure the payment of child support for the welfare of the child.

In this hypothetical case, client provided support for the welfare of the children well after they had reached the age of majority. He also repeatedly notified the Department of Revenue after the children had reached the age of majority, and they misadvised him twice before finally requesting a modification over a year after he had requested relief. While the petition for modification should have been filed soon, this case is an example of an extraordinary circumstance where equity would support the court’s decision to relieve respondent of the arrearage.

Florida courts have narrowed the above exception to the general prohibition against retroactive modification, where no further support obligation exists because a child has attained majority, too strictly “allocated” child support awards. Florida courts do not allow for retroactive modification in cases where “the trial court, at its discretion, orders a lump sum support payment for more than one child.” In those cases, the obligor parent has the affirmative duty to seek a reduction as the child reaches majority. The parent must continue to make full support payments until he or she successfully obtains modification, and the payments past when they are due.

However, in the hypothetical case we are talking about, the language of the final judgment specifically provides that “the obligation of the husband to support a child shall terminate as each child reaches the age of 18 years, dies, marries, or becomes self supporting affirmative and full time employment, whichever first occurs.” Appellate courts have ruled the “qualifying events” language, when given full consideration with a lump sum child support award for two or more children indicates the trial court’s intentions to allocate the award. The facts of McLung versus McLung are very similar to this hypothetical, the court ruled:

Based upon our de novo review of the parties’ agreement, we believe that paragraphs 15 and 18 must be construed together in order to give full effect to each. When that is done, we conclude, as did the trial court, that the parties intended for the child support payments to be allocated between each child such that upon the occurrence of one of the qualifying events was to the paragraph 18, the former husband would only be obligated to pay the former wife $200 per month for the remaining child. We are compelled to reach this conclusion because paragraph 18 speaks in terms of the former husband’s financial obligation to each child individually as opposed to the children collectively.

In conclusion, given the facts, the language of the final judgment, and the controlling law on this issue, retroactive modification is appropriate. Equity demands client receive credit for the years of support he provided to the children’s past his legal obligation, as it was never the court’s intention that he pay the full support amount past the time the children reach the age of majority. Therefore, the court should legally excuse the recent arrearage. 

Kenny Leigh and Associates is a Florida law firm that represents exclusively men in the area of family law. We have offices statewide that can help you with your family law needs. If you have any questions, please go to our website at

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