In most circumstances, when a child of divorced parents gets married, this automatically emancipates the child; any current obligation that you have to pay child support for this child will terminate. But past due child support, or arrears, is generally still owed to the recipient parent even after the child's marriage. The past due amount is owed to the recipient parent for financial harm caused by supporting the child alone for all of the time that no support was paid and arrears accumulated.
Arrears Continue After a Child's Marriage
Although a child may be emancipated after marriage, the law views child support arrears as past due debts. So, although there may be no current obligation to support the child, at one time there was a legal obligation and the paying parent fell behind. Although this debt is paid to the child's custodial parent, child support is generally viewed as a child's right. The law sees child support arrears as money the custodial parent should have received to benefit the child before emancipation. The right to this money does not end simply because the child grows up. Arrears can still be collected for years after a child has married and becomes emancipated.
Exceptions for State and Federal Benefit Recipients
Although a child's custodial parent can try to collect arrears after the child gets married, some exceptions to this rule may apply. For example, the custodial parent may have been receiving state or federal benefits during the time that the other parent stopped paying child support. If the child support had been paid, the custodial parent might not have qualified for those benefits. To collect the child support after the fact would, in essence, constitute double-dipping; the custodial parent received the state or federal benefits and would also receive the back child support.
Exceptions for Statute of Limitations
It is important to pay attention to the statute of limitations in your particular state when trying to collect child support arrears. Some states have a 10-year statute of limitations so you must start the collections process within that time frame. However, you can usually continue to collect for years to come. Some states have no statute of limitations at all so a parent can always pursue the other parent for child support arrears even when the child is well into adulthood. You can determine the statute of limitations in your state by contacting your local child support office or local courthouse.
Defenses for the Paying Parent
A parent who owes child support arrears generally will have to pay them, absent some special circumstances. But the debtor has some defenses to bring to the court's attention to avoid paying back child support. One defense is called laches, which means that the custodial parent waited too long to bring the claim even if there is no statute of limitations. The court may determine that too much time has passed, causing the custodial parent to lose the right to pursue the claim. Another defense is the doctrine of equitable estoppel, which means that an injustice would occur if the custodial parent is allowed to proceed with a claim for arrears. This most often occurs when the custodial parent earns a very high income and has no real need for the money and the paying parent earns a nominal or modest income.
References & Resources
- US Department of Health and Human Services: Assessing Child Support Arrears in Nine Large States and the Nation
- DivorceNet.com: Child Support in Arrears After Divorce
- ChildSupportCalifornia.com: Back Child Support Problems
- SupportKids.com: Child Support Collection
- DivorceNet.com: How to Get Child Support Arrears Paid
- KoonsFuller.com: Defending and Enforcing Old Child Support Claims
- Jupiterimages/Pixland/Getty Images