ARTICLES

Reducing Child Support

There is no law against avoiding child support. Evading child support is morally wrong and illegal. Avoiding child support is morally and ethically acceptable... and legal.

Proper Calculations: The biggest mistake made by parents who pay child support is allowing the opposing party, the state’s attorney, or someone else to do the math. Take the time to work with an experience and skilled attorney. The money you spend on good legal advice will pay for itself many times over. Many laws limit the amount of money that can be taken from an obligor. Also, child support obligations can be used to reduce other obligations. If you’re facing a child support obligation or a re-calculation, take a few minutes to call our office to find out what you can expect to pay and what you can do to reduce your payments. It’s fast, easy, and the first call is free.

Immediately Seek Reductions when warranted: The child support order defines your child support obligation. The requirements of the child support order must be observed and satisfied. Where an obligor wishes to reduce the child support obligation, the order first must be modified. Act quickly! Judges are not allowed to reduce support retroactively. Illinois law specifically says that a retroactive relief (a reduction) can go back only to the date of the filing of the request.

Credit for Overpayments:  Sometimes child support papers can get a bit confusing and the occasional obligor will overpay.  Credit for the overpayment may be applied in certain cases.  It isn’t guaranteed, however.  In one case,¹ a father overpaid by continuing to make payments during a time when he didn’t have to.  His mistake was costly as the court refused to give him credit for the overpayments.  In another case,² however, the judge gave the obligor credit for overpaid child support by reducing the payor’s future child support payments.  The reduction offset the overpayment.  In some cases, credit for overpaid child support is mandatory.³  If you’re faced with an overpayment / credit situation, call our office to talk with a knowledgeable attorney to see if a credit is warranted.

Laches: “Laches” (pronounced like “latches”) is the legal equivalent of “use it or lose it.” When a party neglects to enforce legal rights for a long time, eventually they begin to lose the authority to ever enforce those rights. “The doctrine of “laches” is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances, causes prejudice to the adverse party, and operates as a bar in a court of equity.”⁴

The doctrine of laches has been applied to child support collections cases. Where a custodial parent has sat idle for a long enough time, eventually that custodial parent loses the right to collect the past-due support. The non-custodial, obligor parent can sometimes get off without having to pay up.⁵

It’s not easy to win such an argument, but it can be done. Call our experienced and skilled attorneys to find out if your case might warrant a sound defense in the doctrine of laches.

Equitable Estoppel: Estoppel is the affirmative version of laches. Laches can be used when the recipient of support fails to enforce the obligation and years go by without complaint. Equitable estoppel can be used as a defense when the recipient does something to indicate that he or she no longer wants to receive support or will settle for a reduced amount. In one notable case the parties divorced, the two children lived with the mother, and the father paid child support to her.  Two years later the elder child moved in with Dad and he (without going to court) reduced by half the support he paid to Mom.  He thought she agreed to the reduction.  She didn’t bother to enforce the support order for nearly nine years.  She finally went to court seeking the past due child support.  Facing a possible $14,750 arrearage (plus interest, court costs, and attorney’s fees) he wisely raised the defense of equitable estoppel.⁶

Call our office immediately if you have a case that may involve defense of “estoppel.” Estoppel defenses are not impossible to present, but they are probably well beyond the ability of a non-attorney.

Justifiable Reliance on Contradictory Orders: Sometimes a child support recipient will apply for assistance from the federal or state government in addition to accepting support payments from the other parent. In other cases, either parent may move to another county or state as seek to modify the existing child support order. The result can be that an individual paying or receiving child support may sometimes be subject to more than one child support order. For example, in a case where an Illinois child support order required the father to pay 35% of his net income for child support. A subsequent child support order issued by a court in Kansas set child support at only $300 per month. Over the years, the discrepancy amounted to some $90,000. The mother eventually went to an Illinois court seeking to collect the ($90,000) difference. Because the father “justifiably relied” on the Kansas order, and the mother knew of the Kansas order but never challenged it, the Illinois court denied her the $90,000.⁷

Poverty, insolvency, or misforture:
Non-payment of child support is enforced in the divorce court by a finding of contempt. Obligors guilty of contempt can be jailed. It is possible to raise a defense to contempt, however. If you are so impoverished and insolvent, or have suffered some significant misfortune that you have no money to pay, you may be able to avoid a finding of contempt and/or jail time.⁸

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