Sometimes things happen that can temporarily make it unreasonably hard for you to pay your existing child support order. Whether you are providing more care for your child than you expected, or have found yourself in jail, you may need to pause your child support while you sort the situation out. Here is what you need to know about child support abatement: when it can happen, what is its' legal effect, and how you can respond if you still need support.

What is a Child Support Abatement?

When child support is “abated” the payer's monthly obligation to pay new child support payments is paused. Any past-due amounts are preserved, but no new charges will be issued for child support amounts for as long as the abatement lasts. Abatement is not common, but under certain circumstances, it can be an effective way of limiting you child support obligations when facing certain temporary life circumstances that make it unreasonably difficult or inappropriate for you to continue to pay.

Child Support Abatement vs Modification

Abatement is different from modification of child support. If you file a motion to modify your child support award because of a change in income, needs, or other circumstances, a family court judge can enter a new order after a hearing based on the Michigan Child Support Formula and any appropriate deviations. This new order replaces your existing Uniform Child Support Order and changes the amount you will be charged each month starting on the effective date.

However, if you instead request a child support abatement either by filing a motion or by making a request with the Friend of the Court, the result does not change your Uniform Child Support Order. Instead, enforcement is simply paused while the circumstance justifying the abatement exists. Once the situation is resolved, the original order will spring back into place and you will need to resume making the same child support payments (or file a motion to modify the amount).

Reasons Child Support May be Abated

As a general rule, both parents are required to contribute to the care and support of their children, even if one parent makes enough money to pay for the children's needs, or a parent is not making very much money himself or herself. There are not very many reasons why a payer's child support will be abated. However, you may be able to file a motion to temporarily abate your child support obligation if:

• Your child is living with you full-time (possibly due to reconciliation between the parties or due to voluntary surrender of parenting time by the other party)
• You are sentenced to incarceration for 180 days or more and will not have the ability to pay support
• You are physically incapacitated and unable to work or pay support for an extended period of time
• Your child is living with someone other than the child support recipient full-time (this may result in support being redirected to the child's guardian, rather than abated)

Can You Contest a Child Support Abatement Determination?

If a payer files a request for child support abatement, the Friend of the Court will send the child support recipient a Notice of Abatement, stating the effective date of the abatement and the reason it was granted. If you receive a Notice of Abatement, you have 21 days to file an objection if you believe the abatement is inappropriate. The Friend of the Court will conduct an administrative review to see if a mistake of fact has occurred. It will then issue a new Notice of Administrative Review Determination. If you disagree with that finding, you can object again, within 21 days, to have the case reviewed by a circuit court judge.

In addition, you can file a new request for the Friend of the Court to reevaluate a child support abatement once you learn that the underlying situation has resolved:

• The child is no longer living with the payer
• The payer is no longer incarcerated
• The payer is no longer incapacitated
• The child is no longer living with a third party

If the Friend of the Court determines this to be true, the abatement will end. Unless the payer files an objection and demonstrates that the situation continues to exist, the original Uniform Child Support Order will go back into effect.

Will Arrearages Be Collected During a Child Support Abatement?

Each child support is a new judgment at the time it comes due. That means you generally can't cancel unpaid arrearages, even if your future-facing child support has been put on hold. But there is one exception. If you are a payer with a substantial unpaid child support arrearage, you can file a motion for a payment plan that will set a schedule for you to pay back arrearages. If accepted, your remaining arrearage payments (and the interest that comes with them) may be abated or discharged.  

What If You Overpaid Your Child Support Amount

You cannot request for your child support to be abated just because you have voluntarily overpaid in the past. For example, just because you started paying your child's private school tuition or tutoring expenses does not forgive your obligation to pay child support through the Michigan Support Disbursement Unit (MISDU). To have your child support amount reduced by the amount you are paying to third parties, you will need to file a motion to modify your child support order to reflect those costs instead.

However, it is possible to receive a credit for child support overpayments made through the MISDU. Usually, this occurs when the parties have been in court for a motion to modify custody or parenting time. At the end of the hearing, the Michigan family court judge may enter an order altering the number of overnights a child has with each parent and directing that child support be recalculated as of a specific date, which may be as early as the date the motion was filed several months earlier. If you have been dutifully paying your child support while the hearings were occurring, you may find you have overpaid your child support amount once the new order is entered. The overpayment will be calculated by the Friend of the Court, and you should receive a credit of future child support payments for the difference.

Get Help with Child Support Abatement from a Michigan Family Lawyer

At Bebout, Potere, Cox & Bennion, P.C., we care about you and your family. We help individuals and families in Rochester Hills, Rochester, Troy, Lake Orion, Oxford, Oakland County, Macomb County and throughout Southeast Michigan. We can help seek or oppose a child support abatement, applying the Michigan Child Support Formula to ensure that you and your children have financial support. Call us at 248-651-4114 or contact us here to speak to an attorney.