Child support payments in arrears? Defend Yourself

The court ordered child support payments in one amount, but you and your ex come up with a new agreement to lower the payments. Which amount of child support is valid?

Historically, courts have ruled that parents cannot unilaterally change a child support order and that the original obligation stands. But a 2018 Illinois case suggests that the paying parent can use the new arrangement as a defense if he or she is sued for nonpayment of the original amount. That defense is called "equitable estoppel," and it means that the suing party is "estopped" from enforcing the original agreement because she induced the other parent to rely, to his detriment, on the assumption that he was satisfying his child support obligation by making the new payments.

The case that opens the door to the estoppel defense is In re Marriage of Hodges, 2018 IL App (5th) 170164 (April 24, 2018). In that case, a father was ordered to pay $788 per month to support his two minor children who lived with their mother. He fell behind on his payments and his ex-wife enlisted the help of the Illinois Department of Healthcare and Family Services to enforce the child support order. At a hearing in 2006, the assistant attorney general drafted a new order that lowered the support to what amounted to $715 per month. Although the assistant attorney general promised to get court approval and never did, both parents thought the new order was in effect. After collecting more than $10,000 in arrears, the mother later made an agreement with the father to accept $715 per month. The father paid that amount from 2007 through December 2013. In August 2014, the mother went to court to enforce the original award.

The Appellate Court of the Fifth District found that the father did not owe as much in back child support as the mother claimed because the father believed that the order had been amended at the 2006 hearing. Additionally, the father diligently paid the lower amounts-through 138 checks from over several years-and the mother accepted them. If the father had known the original order was still in effect, he could have sought a modification but he didn't because he relied on the mother's acquiescence and acceptance of lower payments to believe he was fully meeting his child support obligation.

If you have modified your child support order informally with your ex, or you want to do so before the court, contact Schwab Family Law. We may be able to help.