Can I Avoid Paying Past Due Child Support by Remarrying My Ex?

 Posted on June 19, 2014 in Family Law

"My wife and I were married in 1990 and we had a child together. We divorced in 2002 and I was ordered to pay child support. I did my best to pay the support in full each month but came up short on a couple of payments when I was out of work. In 2010 my wife and I remarried and we all started living together as a family again. She never once asked me to pay child support during this time. I was served with divorce papers last week and now my wife says I owe her $10,000 in past-due child support even though we remarried. Is she right?"

The answer to this question involves good news and bad news.

The bad news is that you should have gone to court and modified your child support payments when you were out of work. This way your child support payments would have been easier to manage and you might not have accrued any past due support. For more information about how to modify you child support payments, click here.

The good news is that Illinois law may allow you to erase a portion of the past due child support that your wife claims you owe. Once you and your wife remarry the provisions of your 2002 divorce decree, including provisions for child support, no longer have any effect. Your remarriage essentially makes your divorce decree disappear because you are living together as though you were never divorced in the first place. Any future child support payments you were required to make under your divorce decree can no longer be enforced by virtue of your remarriage.

In addition to terminating any current or future obligation to pay child support, your remarriage might even be able to erase the entire amount of your past due support. There is currently a disagreement as to what effect the remarriage of a former husband and wife has on their divorce decree.

One appellate Court in Illinois, in a case that has not been overturned, held that remarriage makes the entire divorce decree unenforceable and puts the parties in a position as if they were never divorced in the first place. In re Marriage of Parks, 258 Ill.App.3d 479 (5th Dist. 1994).

Without an enforceable divorce decree there cannot be a basis for child support, as such any past due amounts owed under the prior decree may cease to exist.

Contact a knowledgeable family law attorney at Martoccio & Martoccio for assistance with your Illinois child support case. Call 630-920-8855.