Overpayment of Child Support

It is often discussed what happens when one parent is underpaying the amount of child support that they are ordered to. Although less common, there are occasions where one parent overpays the amount of child support that they are supposed to. In these cases, issues arise as to what happens with the extra money received and whether the parent should receive credit for the amount overpaid. The circumstances surrounding why the child support was overpaid matters.

Case law provides guidance as to what should be done when one parent overpays child support. When a parent voluntarily overpays child support, they should not receive credit for the amount overpaid. In re Marriage of Miller, 231 Ill.App.3d 480, 485 (1992). Voluntariness is liberally construed, essentially meaning that if a party is making the payment themselves (typically via Zelle or Venmo), this will be considered voluntary. Even if a parent believes that they are paying the correct amount per an order, when they are overpaying, they are not entitled to a credit for these overpayments. Id. This is another example of why it is extremely important to understand and know the terms of court orders pertaining to your divorce or parentage case. The rationalization of this approach is to prevent parents from modifying terms of orders unilaterally rather than obtaining a new court order to memorialize an agreement. Id.

In contrast, if overpayment is involuntary, the parent overpaying may be entitled to a credit for the amount overpaid. Harner v. Harner 5 Ill.App.3d 430 (1982). This most commonly occurs when one parents’ wages are garnished through an entity such as the State Disbursement Unit (“SDU”). If the SDU inadvertently garnishes too much of a parties’ income and pays out more support than ordered, this is considered involuntary, and the parent may be entitled to credit. This is considered an exemption to the general rule against crediting overpayment of support.

The Law Office of Erin M. Wilson LLC has experience in representing individuals on either side of this issue, both who have overpaid and who have been overpaid. If you believe you may be experiencing a similar issue, contact The Law Office of Erin M. Wilson LLC for a consultation at 312-767-4220.

NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.