In family law, arrears are the amount one party owes the other in the form of child or spousal support. The non-custodial parent pays this support to the parent with the child. Sometimes arrears can accumulate so much that the payer is unable to make these payments. Granting a discharge of arrears means that the payer is released from paying child or spousal support. It is very difficult to convince a family court to discharge arrears, though it is possible. Certain factors can cause a judge to grant a discharge of arrears.
A person may be discharged of arrears temporarily; this is known as abatement. Under abatement, the payer still has the obligation to pay any debt he owes in the form of child or spousal support. During this temporary discharge, the amount of arrears continues to accumulate, but the payer does not have to pay it at that time. Temporary discharge of arrears is granted if the payer loses his job or source of income, and is looking for another job. Upon obtaining another source of income or employment, the payer resumes making payments on the arrears.
Not Able to Pay
A discharge of arrears may be granted if a court finds that the payer is completely unable to pay arrears now and in the future. This may be due to a very bad financial situation, where it would not make sense to expect the payer to complete his arrears. The payer has to provide financial evidence such as tax returns and liabilities to prove his irredeemable financial condition. The court may also consider factors such as his previous efforts to pay arrears, and whether he has been a good father to his child.
Substantial change is the dominant factor that may warrant a discharge of arrears. Substantial change in circumstances has to be clearly demonstrated in a court for a judge to discharge the arrears. Substantial changes in circumstances may include a cessation of dependency, when a child or a spouse no longer requires the support. Cessation of dependency may occur if the child is above 18 years and financially stable.
A payer who becomes disabled and is depending on Social Security income for his welfare may be discharged from paying arrears. This may be on a temporary basis until the disability is healed and the payer has the capacity to resume paying the arrears. Prolonged or extended disability that has no sign of improvement may also qualify a payer for discharge of arrears.