Child support payments can be modified throughout a course of litigation, either due to a change in circumstances of the parties1, children becoming emancipated2, or a change in child custody3, to name a few. Often if there is a change in child support, there is a potential overpayment of child support. In some cases, this overpayment may be reimbursed. In others, it may not be.
How is it determined whether overpaid child support is reimbursed? It seems that much of it depends on the intent of the parties. For example, if a child became statutorily emancipated at age nineteen (19) and Mother did not filed any document with the Court and continued to pay child support while the child was in college, this may be considered a gift, and Mother would not be reimbursed.
The rationale for the example above would be that Mother should have taken action to cease child support payments, either by filing with the Court a motion stating that the child is emancipated and the child support duty has ended or by discontinuing the child support payments for the emancipated child if she desired for child support to terminate. Failure to act and continuing to pay makes Mother’s overpayment voluntary and a gift.
An emancipation notice and termination of support is unlike most other child support modification motions. A termination of support motion goes back to the actual date of emancipation, not the date the motion was filed like modification motions. Therefore, a motion to terminate child support coupled with an emancipation notice provides a concrete date that child support is to have terminated. If this date is clear and has been ordered by the Court, a reimbursement of overpayment also may be sought.
Often, it is prudent, to protect one’s interest, for the parent paying child support who believes there is an overpayment of same to file a motion with the Court to be reimbursed for any overpayment. For example, if Father is paying child support by Income Withholding Order (IWO) and custody is modified to him, it may take several weeks for his employer to terminate the IWO, resulting in an overpayment. In this case, Father may file a motion for return of overpayment, and because Mother continues to receive child support while not having custody of the child, she may be ordered to return that overpayment.
Reimbursement of overpaid child support is not automatic, and without the issue being preserved, it may be denied. Understanding the law and taking proactive measures to avoid overpayment of child support may likely boost the chances of overpaid child support being returned.
We hope that this blog post has been informative about child support overpayment and when reimbursement may be sought. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
