28 J. Fam. L. 43 (1989-1990)
Whether and under what circumstances a parent who is ordered to pay child support is entitled to credit against a child support arrearage is one of the most vexing problems for the family court. Some courts consistently demand strict adherence to a child support order and do not permit retroactive modification. Other courts have allowed retroactive modification of support decrees when equity dictates. A recent amendment to the Social Security Act, however, prohibits retroactive modification of child support orders, leaving a number of unanswered questions concerning credit requests for nonconforming support payments.
This Article explores the problems created by nonconforming child support payments' unfortunate entanglement with the rule against retroactive modification of support orders. It also suggests a more equitable approach to this aspect of child support enforcement. Part I defines nonconforming child support payments and the problems they present to family courts. Part II outlines various approaches the states have taken concerning requested credit against support arrearages for nonconforming payments. Part III discusses the rule against retroactive modification of support orders and its relationship with nonconforming payments problems. Part IV examines the probable impact of 42 U.S.C. Section 666(a)(9) on credit requests for nonconforming payments. Part V argues for a more equitable approach to handling nonconforming payment issues and proposes an amendment to 42 U.S.C. Section 666(a) providing for judicial discretion. Part VI concludes that justice would be served best by legislatively empowering a court to give credit for nonconforming payments when dictated by fairness and equity.
John E. Smithburn,
Removing Nonconforming Child Support Payments from the Shadow of the Rule Against Retroactive Modification: A Proposal for Judicial Discretion,
28 J. Fam. L. 43 (1989-1990).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/728