Modification of Child Support Arrears
Generally, child support arrears cannot be modified by a court. However, there are exceptions which may offer solutions or negotiations that may result in reductions.
Can I Modify my Child Support Arrears?Often, I am asked how a person may modify their child support arrears, either because the person obligated feels: (1) the child support obligation was unfair at the time it was entered; (2) since the original Order was entered they lost their job or had a reduction of income or an increase of expenses; or (3) the child(ren) are now emancipated and the other parent no longer has to care for them.
The short answer is that a Court may never modify child support arrears (including interest accrued) retroactively. Minnesota Statutes are clear that any valid child support order order remains in effect until a party moves to modify the order. In other words, if there is a change in circumstance to income that warrants a modification, it is incumbent on the party who needs the modification to file an immediate Motion. A basis for modification may be shown if the terms of the existing support order are "unreasonable and unfair," which may be demonstrated by "substantially increased or decreased" income of an obligor or obligee, or the "substantially increased or decreased" needs of the obligor, obligee, or child.
If the district court modifies the child support order, the modification may be made retroactive only with respect to the "period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party and on the public authority if public assistance is being furnished or the county attorney is the attorney of record."
What about Equitable Considerations?Now that we have established the basic rule, that a Court may never retroactively modify a child support obligation, there are a few exceptions. Courts also sit as Courts ofEquity. That means they must consider what is fair within the context of existing statutes. Some equitable considerations courts may consider are as follows:
(1) A child support obligation may be deemed "satisfied" if the children actually reside with the obligor and the obligor has provided the children with a home, support, and care during that time period.
(2) A child support obligation may be "reopened" and then reargued for the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect;
(b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the Rules of Civil Procedure, rule 59.03;
(c) fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party;
(d) the judgment and decree or order is void; or
(e) the judgment has been satisfied, released, or discharged, or a prior judgment and decree or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment and decree or order should have prospective application.
Any motion to reopen must be made within a reasonable time, and for a reason under clause (a), (b), or (c), not more than one year after the judgment and decree, order, or proceeding was entered or taken.
These exceptions give courts a "practical way to prevent inequity."
What about Direct Negotiations?The above tenets relate to the powers of a Court to modify child support arrears.
It is also true that parties may AGREE to modify arrears. This most often occurs when an obligor negotiates a buy-out- paying a lump sum up front in order to forgive some part of arrears. Keep in mind that all parties in interest must agree. That means if some arrears are owed to the County for public assistance expended on behalf of the child, the county must also be in agreement with the stipulated reduction.
You should always discuss your case with an experienced attorney.