By Richard A. Mann, Mann Law PC
Many people do not understand that if they have had a change in their income due to accident or illness while they are ordered to pay or receive child support that they should immediately consult a family law attorney to see what effect, if any, it will have on the support. I have seen (over the years) people incur tens of thousands of dollars in back child support because they think since their income went down and the other party agrees that the support is not owed or not owed in the same amount. Except in a few situations not relevant here, you must have a court enter an order modifying your support. The court generally cannot modify the support to a date before a petition to modify has been filed. Donegan v. Donegan, 605 N.E.2d 132 (Ind. 1992).
One might think since they are applying for social security disability, have a personal injury lawsuit, or a worker’s compensation claim that the court will just allow them to pay whatever benefits are awarded for the child or their support is automatically reduced to reflect their situation. Unfortunately, this is not the case. Unless a petition to modify is filed the support continues to accrue and is never dischargeable in bankruptcy. I have seen cases where a person’s monthly benefit for social security disability has been garnished for back child support in excess of 60% of the monthly amount. When you apply for an award and are granted a back award for dependents, that amount now can be credited to your back support to the extent it goes to the dependent. However, if you receive a back award and it exceeds the amount of back support due, you do not receive a credit for the overpayment and it is considered a gift. If you have not filed to modify, in all likelihood the back social security or worker’s compensation award for dependents will not cover your back child support. Some insurance companies are now searching to make sure that the person who was injured does not have a back-child support arrearage and when they do they withhold the support from the settlement proceeds.
Under Indiana law the court recommends that if you become injured or ill and it appears that you cannot work for an extended period of time you should file a petition to modify the support and the trial court should stay the proceedings until a determination can be made as to the length or extent of the lost income. Brown v. Brown, 849 N.E.2d 610 (Ind. 2006). While the rules now allow the person who is ordered to pay to receive credit against a back support arrearage, the fact that you are found to have been disabled and entitled to benefits does not modify the amount of back support owed. It is, therefore, imperative that you consult an attorney immediately to see if you should file a motion or petition to modify your support. See I.C. 31-16-16-6.
You might ask why should a person receiving support be concerned about a modification if they are injured or ill? One of the major components of a child support calculation is the incomes of the parties. If your income suddenly goes to zero, then your support order could be increased. Remember the support is to care for your child and if your income just stops then you need more support. In a future post, we will cover other issues which can catch you off guard and result in large child support arrears.
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