CHILD SUPPORT ARREARAGE CAN’T BE FORGIVEN. OR CAN IT?
October 20, 2010 § 2 Comments
It is axiomatic in Mississippi law that every child support payment is vested when due and any arrearage may not be forgiven, reduced or done away with by the chancellor. Moreover, the child’s right to his parent’s support cannot be bargained or contracted away by his parents. Calton v. Calton, 485 So.2d 309, 310-311 (Miss.1986).
The rule is not ironclad, however. The Mississippi legislature carved out a narrow exception in MCA § 93-11-71, which states in part:
… upon a motion filed by the obligor and a finding of clear and convincing evidence including negative DNA testing that the obligor is not the biological father of the child or children for whom support has been ordered, the court shall disestablish paternity and may forgive any child support arrears of the obligor for the child or children determined by the court not to be the biological child or children of the obligor, if the court makes a written finding that, based on the totality of the circumstances, the forgiveness is equitable under the circumstances.” [Emphasis added]
Caveat: The statute would not apply in the circumstances spelled out in Lee v. Lee, 12 So.3d 548 (Miss. App. 2009), which is the subject of a previous post.
ALSO: § 93-11-71 self-repeals on July 1, 2011, although it has been re-enacted previously.