It is not uncommon for a divorced spouse responsible for making child support payments to become overwhelmed financially, perhaps reaching out to the other parent in hopes they will accept reduced monthly child support payments temporarily or long term.
Even if the recipient parent agrees, if the two parties deviate from the child support order, the obligor might still be on the hook for the full amount owed if the other parent or a third party seek child support arrears in the future. Not only are arrears payable, but also late penalties and the possibility of garnished wages to satisfy the debt.
The correct way to approach a reduction in child support payments involves modifying the child support order by filing a petition with the court. A parent must demonstrate a substantial change in circumstances since the original order such as a significant reduction in the obligor’s income, often the result of a pay cut or being laid off from a job.
Other reasons for a reduction in the child support obligation may include a change in parenting time where the child is spending more overnights with the obligor parent (and less with recipient) or the obligor has an addition to their family such as the birth of a new baby that may change the child support calculation.
Forgiving Child Support Arrears Via Equitable Estopple
Again, informal agreements to reduce child support typically do not stand up in court so a modification of the child support order is essential. However, there are situations where child support arrears may not be collectible if a parent sues for the original amount, which has to do with a defense called equitable estopple.
Equitable estopple is a legal doctrine that prevents a party from asserting a claim if their prior actions, representations, or silence misled another party resulting in reasonable reliance and detriment. In a child support context, if a recipient parent led the obligor to reasonably believe that the child support obligation was waived or altered, or that the recipient parent would not pursue arrears, the payment of arrears may be waived.
Equitable estoppel may apply when:
- The recipient parent made explicit statements or signed an informal agreement stating support was no longer needed or agrees to a reduced amount, leading the obligor to rely on the agreement, and subsequently not planning financially for the payment of support.
- The non-custodial parent suffered a tangible detriment due to their reliance on the informal agreement such as financial hardship, missed opportunities, or lifestyle changes. For example they may have taken on new financial obligation such as starting a new family assuming no arrears would be pursued. They may have spent money or passed up a better paying job believing support was no longer required putting them in a precarious financial situation when the recipient demands arrears in the future.
- If the recipient parent creates the impression that enforcement of child support payments is waived by not taking action/being silent on the issue over a period of time, despite knowing the obligor was not paying support, laches (unreasonable delay) may apply (overlaps with estoppel arguments). For example if a recipient parent waits 10 years to claim arrears while the obligor assumed the obligation was dropped, the court may adjust the child support arrears down or, more rarely, forgive arrears entirely.
- A recipient parent that deliberately misleads the other parent by lying about support needs, hides the child’s existence, or claims the child is no longer in their care (living with grandparents for example), which leads the obligor to act to their own detriment (ceasing support and not planning financially for arrears) the court may waive past due support.
As a general rule, courts consider estoppel only if forgiving arrears does not jeopardize the child’s current or future welfare. If a child is now an adult, or their support needs are met, estoppel is more likely
Contact an Experienced Child Support Lawyer for Help Today
When you have questions regarding the modification of a child support order or believe estoppel applies in your situation, contact the Lake county Illinois family law office of Ronald L Bell & Associates to discuss the best course of action at 847-495-6000.