Father Entitled to Credit for Overpayments of Child Support

The general rule concerning child support payments, in New York State, is if you overpay your child support, you are not entitled to a refund or credit for the overpayments. However, if you underpay your child support, legal action can be taken against you to force you to pay the correct amount of child support. In a recent case, a father over paid child support by $29,000. This was due to an error made by a support magistrate. In this case, even though there is a public policy in New York that prevents restitution of overpayments in child support cases, an upstate appeals court has made a ruling giving the father credit for the $29,000 in overpayments in child support.

Appeals Court Gives Father a $29,000 Credit

The case took place in Albany County. Judge W. Dennis Duggan had increased the man’s child support payments by $1,000 per month. An appeals court reversed the judge’s ruling. The appeals court stated it would be unjust to deny the father a credit for the overpayment.

Judge Duggan stated that if the father had underpaid child support he would have had to have made up the difference. Judge Duggan went on to state “the law can not contenance a situation where the father is liable for up to $29,000 in excess child support when Family Court gets it wrong but he would get a credit for up to $29,000 when Family Court gets it right.”

The original child support payment was $1500 per month pursuant to a judgment of divorce. A support magistrate had granted an order raising it to $2500 per month based on a change in circumstances. The appellate court reversed the support magistrate’s ruling.

Conclusion

Denying a father the appropriate credit for overpayments punishes the father for following a court order that is later reversed. This would be fundamentally unfair. Fathers should be entitled to credits for overpayments of child support. These credits should be utilized with regard to future child support payments the father is obligated to make.

Elliot S. Schlissel is a father’s rights attorney who has represented fathers throughout the Metropolitan New York area for more than 45 years in divorce cases and Family Court proceedings.