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Amaral & Associates, P.C. - Divorce, Family Law

When Can a Parent Receive a Retroactive Credit on Child Support?

Child Support Massachusetts, Child Support Mass., Child Support Suffolk County, Child Support Middlesex County, Child Support Essex County, Child Support Norfolk County, Child Support Boston, Child Support Winthrop, Child Support East Boston, Child Support Revere, Child Support Danvers, Child Support Lynnfield, Child Support Marblehead, Child Support Swampscott, Child Support Nahant, Child Support Peabody, Child Support Salem, Child Support Saugus, Child Support Arlington, Child Support Belmont, Child Support Burlington, Child Support Cambridge, Child Support Everett, Child Support Malden, Child Support Medford, Child Support Melrose, Child Support North Reading, Child Support Reading, Child Support Somerville, Child Support Stoneham, Child Support Wakefield, Child Support Watertown, Child Support Wilmington, Child Support Winchester, Child Support Woburn, Child Support Brookline, Child Support Braintree, Child Support Milton, Child Support Quincy, Child Support Chelsea, Child Support Modification Massachusetts, Child Support Modification Mass., Child Support Modification Suffolk County, Child Support Modification Middlesex County, Child Support Modification Essex County, Child Support Modification Norfolk County, Child Support Modification Boston, Child Support Modification Winthrop, Child Support Modification East Boston, Child Support Modification Revere, Child Support Modification Danvers, Child Support Modification Lynnfield, Child Support Modification Marblehead, Child Support Modification Swampscott, Child Support Modification Nahant, Child Support Modification Peabody, Child Support Modification Salem, Child Support Modification Saugus, Child Support Modification Arlington, Child Support Modification Belmont, Child Support Modification Burlington, Child Support Modification Cambridge, Child Support Modification Everett, Child Support Modification Malden, Child Support Modification Medford, Child Support Modification Melrose, Child Support Modification North Reading, Child Support Modification Reading, Child Support Modification Somerville, Child Support Modification Stoneham, Child Support Modification Wakefield, Child Support Modification Watertown, Child Support Modification Wilmington, Child Support Modification Winchester, Child Support Modification Woburn, Child Support Modification Brookline, Child Support Modification Braintree, Child Support Modification Milton, Child Support Modification Quincy, Child Support Modification Chelsea when can a parent receive a retroactive credit on child support? When Can a Parent Receive a Retroactive Credit on Child Support? AdobeStock 169388276 2 1024x683 1024x683It is not uncommon that as children get older, the custody and parenting schedule for the children change over time.  This can include children moving in with the other parent.  When these changes happen, it is also not uncommon for child support to be updated at the same time.  The law requires that any changes to an existing child support order or child custody order must be made through the Probate and Family Court, and not through a private agreement of the parents.  This is based upon a long standing policy of the Probate and Family Court, the Massachusetts Legislature, and federal law relating to child support, to ensure that a child’s best interests are protected in any changes to a custody or parenting plan, as well as child support.

 

However, sometimes parents change custody, the parenting plan, and/or child support, and do not go back to court.  It’s not uncommon for this to cause problems down the road if one or both parents go back to court in the future.  In those circumstances, it’s not uncommon for one or both parents to deny that there was a previous private agreement made outside of court, or disagree about the terms of the agreement.  Then, it is left to the Probate and Family Court to try to figure out what may or may not have been previously agreed upon outside of court, and whether that agreement is at all enforceable at this time.  This can lead to more court appearances that may have otherwise been necessary, and more legal fees incurred by both parents.

 

The Massachusetts Appeals Court recently addressed a case in which a similar fact pattern happened.  In the case of Rosen v. Rosen, a couple divorced in 2003.  At that time, they had 3 children, all of whom resided with the mother.  From 2007 to 2011, all three children, one-by-one, moved in with the father.  However, as each child moved in with the father, the parents did not go back to court to update custody, the parenting schedule, or child support.

 

Rather, in 2007, when the first child moved in with the father, the parents privately agreed that child support would be reduced by 1/3, since the first child had moved in with the father.  Then, in 2009, the parents entered into a written agreement to modify child support.  This agreement, again, was a private agreement that was never filed with the court.

 

Then, in August 2011, the second child moved in with the father.  Shortly thereafter, the Father filed a Complaint for Modification with the Probate and Family Court to formally modify child support, custody, and the parenting schedule.  While the Complaint for Modification was pending, the third and final child moved in with the father.

 

While the Complaint for Modification was pending, the Probate and Family Court discovered the private agreements the parents made without going back to court in 2007, and again in 2009.  Thus, the Probate and Family Court was faced with the task of determining if these private agreements were valid, even though they were not made a court order in 2007 or 2009, and also if there is any additional adjustments that should be made in the child support order because of these private agreements.

 

Specifically, the Probate and Family Court struggled with determining whether the father should be entitled to some equitable adjustment on his child support for the time that any of the children resided with him to the time the Complaint for Modification was filed in August 2011.  The Probate and Family Court struggled with this because of the long standing policy of the Probate and Family Court, the Massachusetts Legislature, and federal law relating to child support, to ensure that a child’s best interests are protected in any changes to a custody or parenting plan, as well as child support.

 

Prior to the Rosen case, a retroactive adjustment of child support could only be awarded from the time a Complaint for Modification was filed to the date the child support was modified, which is typically a matter of a few months or several weeks.  However, here, in the Rosen case, the Probate and Family Court judge had to determine whether it was appropriate to adjust child support retroactive for several years.  Ultimately, the Probate and Family Court judge did, in fact, permit a credit on child support going back to when the children began to move in with him.

 

When the case reached the Appeals Court, the Appeals Court was faced with the task of determining whether this credit was contrary to the long standing policy of the Probate and Family Court, the Massachusetts Legislature, and federal law relating to child support, to ensure that a child’s best interests are protected in any changes to a custody or parenting plan, as well as child support.

 

After a long analysis of comparing federal law relating to child support, and the policy and law of other states, the Appeals Court determined that a retroactive credit is permissible, but such a credit should be awarded in very limited circumstances.  The Appeals Court then established a test that must be applied to determine if this credit may be applied.  The test is that the payor parent must prove that:

 

  1. the support recipient agreed:
    • to transfer custody of the child to the payor for an extended period of time not contemplated in the original custody order, and
    • to accept the payor’s direct support of the child as an alternative method of satisfying the payor’s child support obligation;
  2. the custody transfer was not the result of duress, coercion, or undue influence exerted by the payor against either the recipient or the child;
  3. the payor provided the child with adequate support and maintenance while the child was principally domiciled in the payor’s home;
  4. the recipient was relieved of supporting the child during the period in question;
  5. the alternative support arrangement was not contrary to the child’s best interests; and
  6. granting a credit to the payor for his or her direct support of the child would not result in injustice or undue hardship to the recipient

 

Thus, although a payor parent may receive a credit on child support going back a long period of time, this credit will only be applied in narrow and rare circumstances.

Therefore, the moral of the story from the Rosen case is that parents should go back to court when they change custody, the parenting schedule, and/or child support, and not make their agreement a private agreement, so as to avoid these headaches that could go back many years!

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