I've been paying child support (garnished) for 6 years. The most recent adjustment included an amount for employee childcare related expenses. This additional $275 has been paid even though the child was no longer in this program. Am I able to file in small claims court to recoup the $5000+ in overage that I've paid since 2010?
State/Country relating to question: Virginia
Hi,My name is XXXXX XXXXX X'd be happy to answer your questions today. I'm sorry to hear about your situation.We have recently implemented a new payment and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not whether the answer supports your legal position. If you have any questions at all, or there is anything I can clarify for you, please bypass the rating system and click “Continue the Conversation” or "Reply". Choosing either of the lowest two options reflects poorly on me (and not the law), so please reply to me if there is anything I can do to help before choosing those options. I appreciate your patience while we work out the kinks.If you are currently overpaying your child support, you can go back to court to get a reduction, based on the fact that the Custodial Parent is not incurring these expenses. Unfortunately, as a matter of public policy, a non-custodial parent is not able to reclaim amounts that are overpaid as child support. Any extra amounts paid are considered gifts to the child, because, otherwise, the law sees it as taking food out of the child's mouth. The child is a completely innocent party, so a judge won't do that. I realize that it's unfair, especially where you are not choosing the amount that you pay, but that's the current state of the law. You can seek a reduction going forward, and you can write your state legislators in an effort to change the law, but you wouldn't be able to get that money back or claim it as a credit against future amounts that are owed.I apologize that this was probably not the Answer you were hoping to receive. However, it would be unfair to you and unprofessional of me were I to provide you with anything less than truthful and honest information. I hope you understand.Good luck.
Attorney with experience in family law.
I completely understand what you're saying, and I don't disagree with you, but, unfortunately, that's not what the law says. There is no legal basis for a non-custodial parent to recover an overpayment of child support, even in cases where there should be.
I just want to ensure that it's understood that the support paid is as a result of an order from the Department of Child Support Enforcement.
I do understand. The system is designed to be as fair as possible to the child, which unfortunately means that it's really not fair to the non-custodial parent. Making a parent repay an overpayment of child support is seen as punishing the children for the parent's wrongdoing - because child support money doesn't really belong to the parent. It belongs to the child. You could file a Motion to have her held in contempt of court for disobeying the order, but that would be done in the Family Court, not small claims. And, even if the judge agrees, he wouldn't order her to repay the amounts. He would chastise her, and maybe order her to pay a small amount to the court as a sanction (but there's no way to know if he would).
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