Question:

I have been divorced for 16 years and pay $800 a month for child support. I just realized I have been paying too much. I write my "x" a $400 check every two weeks when I get paid and have been doing that since day one and never missed a single payment. The problem is I should only be paying $9,600 a year and have been paying $10,400 a year.

I have 5 months left until I am done with payments due to my daughter graduating high school. I know if I were paying too little I would have to make it up in arrears. I want to get that overpayment back. Can I do that?

Answer:

Absent an agreement approved by a court finding that you have overpaid, you will need to prove you have made all the payments in order to obtain a court ruling addressing the overpayment.

Since you advise you paid her directly, the burden is normally upon you to prove you paid.   When possible, it is preferable to pay child support through the court or the state to create a record of payments that is presumptive proof of payment.  This option may not have been available to you when the support payments started 16 years ago.

If you can produce the records showing all the payments, she may still assert you made these extra payment voluntarily or for other expenses and not as your child support.  If there is no dispute as to the payments, she may seek to have the overpayments credited to future college expenses, past medical expenses, or some other reason not to repay the overpayments to you.

Finally, any judgment for her to repay you will be subject to whether she has the funds or assets to collect from her.  You may end up with a judgment you can not collect or a monthly payment plan that may take years to recoup the overpayment. 

You will need to have a court order entered on the overpayment, whether by agreement or after a hearing.  You should consult a qualified family law attorney as to the laws of your state on such overpayments and your options for obtaining repayment or a credit against any future obligations you may have for college or medical expenses.

Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses' Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues.