Pennsylvania law provides many remedies if support is underpaid. But how does the court deal with overpayment of support? An overpayment is created when the obligor pays more support than needed (through modification, termination or error).
Support overpayments are relatively rare but can be frustrating to correct. Put simply, the court does not care as much about returning overpayments as it cares about punishing underpayment. Underpayment of support can lead to the loss of a tax refund, license or even freedom. Overpayment is generally carried until the support obligation ends.
This question is governed by Pa.R.C.P. 1910.19(g). That law was changed, effective October 31, 2011. There are now set procedures for dealing with overpayment depending on whether the support order is still charging or not.
If the support order is still running, the court is now supposed to reduce the Order by either 20% until the overpayment is satisfied
or by an amount sufficient to pay off the overpayment over the expected life of the order. We can expect to a see a 20% reduction in most cases. However, the payee may contest this reduction.
If the support order is terminated (say by emancipation at 18), then the payor may petition the court to recover the payment.Upon such petition, the court will schedule a conference on the matter and then may (or may not) issue a reverse order on a monthly schedule. The court may decline to issue such an order based upon an inability to pay, at the discretion of the Hearing Officer or Judge.
Anybody seeking to be reimbursed for an overpayment of a terminated order must do so within 1 year of the order ending. However, in many cases, it will not be worth the time, counsel fees or stress to satisfy the overpayment of a terminated order.
Fortunately, Pa. R.C.P. 1910.19 (e) now includes a requirement that the court proactively address the issue of emancipation 6 months prior to the child's 18th birthday. Accordingly, a support overpayment should be satisfied by the end of a child support order, so long as the overpayment does not exceed a few months of support and the court follows the law.
The relevant law now reads:
Rule 1910.19 (g) Overpayments.
(1) If there is an overpayment and a charging order remains in effect, after notice to the parties as set forth below, the domestic relations section shall reduce the charging order by 20% of the obligor’s share of the basic child support obligation or an amount sufficient to retire the overpayment by the time the charging order is terminated. The notice shall advise the obligee to contact the domestic relations section within 60 days of the date of the mailing of the notice if the obligee wishes to contest the reduction of the charging order. If the obligee objects, the domestic relations section shall schedule a conference to provide the obligee the opportunity to contest the proposed action. If the obligee does not respond to the notice or object to the proposed action, the domestic relations section shall have the authority to reduce the charging order.
(2) If there is an overpayment and there is no charging order in effect, within one year of the termination of the charging order, the former obligor may file a petition with the domestic relations section seeking recovery of the overpayment. A copy shall be served upon the former obligee as original process. The domestic relations section shall schedule a conference on the petition, which shall be conducted consistent with the rules governing support actions. The domestic relations section shall have the authority to enter an order against the former obligee for the amount of the overpayment in a monthly amount to be determined by the trier of fact after consideration of the former obligee’s ability to pay.