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Retroactive child support

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midad8

Member
What is the name of your state (only U.S. law)? MI

I just received the Judgement of Divorce (JOD) from my wife's attorney, which will be finalized in the next month or so. There is a paragraph about retroactive support I would appreciate some advice on as I am doing it pro se. The exact wording is:
"It is further ordered and adjudged that if a retroactive support decrease results in an overpaid account, the new modified support amount shall be charged but the obligation to pay is suspended and any exiting income withholding order cancelled until such time as the account is no longer overpaid."

It sounds like a standard proforma statement, but my questions are:
- What is the "retroactive support decrease" the statement above is referring to? I didn't think a new lower modified support amount can affect what's been paid already.
- Can retroactive child support be ordered for a time period prior to today, even when no order has been issued up to now?

Thanks!
 
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mistoffolees

Senior Member
- What is the "retroactive support decrease" the statement above is referring to? I didn't think a new lower modified support amount can affect what's been paid already.
Let's say that NCP files for a reduction in support on Jaunary 1, 2013, but it takes the court 6 months to hear and decide the case. Now, let's say that the court grants the reduction, effective January 1. That means that NCP has been paying too much support for 6 months, so the account is overpaid. Your order means that NCP can stop paying until the overpayment has been corrected.

- Can retroactive child support be ordered for a time period prior to today, even when no order has been issued up to now?
Retroactive child support can typically only be ordered back to the date of filing.

I can't answer your question with the information given. Has anyone filed requesting support yet?
 

midad8

Member
When you say date of filing, you mean the Complaint of Divorce? Nobody has requested anything in terms of temporary child support. I was wondering if the judge can order one retroactively now if the CP requests it for the past few months.
 

mistoffolees

Senior Member
When you say date of filing, you mean the Complaint of Divorce? Nobody has requested anything in terms of temporary child support. I was wondering if the judge can order one retroactively now if the CP requests it for the past few months.
No, the judge can not rule on child support unless someone requests it. So the date of filing for CS matters is the date someone files requesting child support to be allocated - not the date of divorce.

Child support will not start at any date before the date that your spouse (or you) files to request a CS order.
 

midad8

Member
No, the judge can not rule on child support unless someone requests it. So the date of filing for CS matters is the date someone files requesting child support to be allocated - not the date of divorce.

Child support will not start at any date before the date that your spouse (or you) files to request a CS order.
Thanks mistoffolees. I appreciate your advice on this and other threads.
 

Ohiogal

Queen Bee
When you say date of filing, you mean the Complaint of Divorce? Nobody has requested anything in terms of temporary child support. I was wondering if the judge can order one retroactively now if the CP requests it for the past few months.
Actually I disagree with Misty. (Sorry, Misty!) IF, when the divorce was filed, child support was requested, then it can be ordered retroactively to the TIME of the divorce filing. It doesn't matter if TEMPORARY support was requested or not> Child support can still go back to date of filing of the divorce if it was requested in the complaint.
 

mistoffolees

Senior Member
Actually I disagree with Misty. (Sorry, Misty!) IF, when the divorce was filed, child support was requested, then it can be ordered retroactively to the TIME of the divorce filing. It doesn't matter if TEMPORARY support was requested or not> Child support can still go back to date of filing of the divorce if it was requested in the complaint.
No problem - that's what I was trying to say, but didn't say it as well.

I said "So the date of filing for CS matters is the date someone files requesting child support to be allocated - not the date of divorce."

I should have said "not necessarily the date of divorce". The important date is the date that child support was requested - whether that occurred as part of the divorce filing or at some other time.
 
Let's say that NCP files for a reduction in support on Jaunary 1, 2013, but it takes the court 6 months to hear and decide the case. Now, let's say that the court grants the reduction, effective January 1. That means that NCP has been paying too much support for 6 months, so the account is overpaid. Your order means that NCP can stop paying until the overpayment has been corrected.
Misto, if you know that your statement above is correct in MI, I'll defer to you. However, I know that that it is not necessarily an accurate statement as to the law in all states. For example, in California, the court has discretion to order the terms of the repayment. As a matter of public policy, both the legislature and courts understand that over payments made (and spent) in prior months do not necessarily help with the necessities in the current or later months. Therefore, the court can do anything from, as you suggest, allow complete set-off against the current order until the overpayment has been offset, to allowing only a partial credit over time, to, allowing no credit at all against current support and allowing a judgment in favor of the payor against the payee (which may not be set-off against current support.)
 

mistoffolees

Senior Member
Misto, if you know that your statement above is correct in MI, I'll defer to you. However, I know that that it is not necessarily an accurate statement as to the law in all states. For example, in California, the court has discretion to order the terms of the repayment. As a matter of public policy, both the legislature and courts understand that over payments made (and spent) in prior months do not necessarily help with the necessities in the current or later months. Therefore, the court can do anything from, as you suggest, allow complete set-off against the current order until the overpayment has been offset, to allowing only a partial credit over time, to, allowing no credit at all against current support and allowing a judgment in favor of the payor against the payee (which may not be set-off against current support.)
I didn't say that it worked this way in every state. As always, rules vary by state.

But in THIS case, the court order is very clear as to how it works. That's why I said "Your order means that NCP can stop paying until the overpayment has been corrected." There's nothing that suggests that it's a universal practice.
 

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