2020 Georgia Code
Title 7 - Banking and Finance
Chapter 4 - Interest and Usury
Article 1 - In General
§ 7-4-12.1. Interest on Arrearage on Child Support

1. All awards, court orders, decrees, or judgments rendered pursuant to Title 19 expressed in monetary amounts shall accrue interest at the rate of 7 percent per annum commencing 30 days from the date such award, court order, decree, or judgment is entered or an installment payment is due, as applicable. The court may modify the date on which interest shall begin to accrue. It shall not be necessary for the party to whom the child support is due to reduce any such award to judgment in order to recover such interest. The court shall have discretion in applying or waiving past due interest. In determining whether to apply, waive, or reduce the amount of interest owed, the court shall consider whether:
   1. Good cause existed for the nonpayment of the child support;
   2. Payment of the interest would result in substantial and unreasonable hardship for the parent owing the interest;
   3. Applying, waiving, or reducing the interest would enhance or detract from the parent's current ability to pay child support, including the consideration of the regularity of payments made for current child support of those dependents for whom support is owed; and
   4. The waiver or reduction of interest would result in substantial and unreasonable hardship to the parent to whom interest is owed.
2. Subsection (a) of this Code section shall not be construed to abrogate the authority of the Department of Human Services to waive, reduce, or negotiate a settlement of unreimbursed public assistance in accordance with subsection (b) of Code Section 19-11-5.
3. Notwithstanding Code Section 7-4-12, 7-4-15, 9-12-10, or 13-6-13, when an award, court order, decree, or judgment for alimony or equitable division of assets and liabilities is payable in installments, interest on such award, court order, decree, or judgment shall not begin to accrue until an installment is 30 days past due unless otherwise ordered by the court.

(Code 1981, §7-4-12.1, enacted by Ga. L. 1996, p. 649, § 1; Ga. L. 2005, p. 224, § 3/HB 221; Ga. L. 2006, p. 583, § 2/SB 382; Ga. L. 2010, p. 878, § 7/HB 1387; Ga. L. 2015, p. 34, § 1/HB 347; Ga. L. 2017, p. 646, § 2-1/SB 137.)

- Ga. L. 2005, p. 224, § 1/HB 221, not codified by the General Assembly, provides that: "The General Assembly finds and declares that it is important to assess periodically child support guidelines and determine whether existing guidelines continue to be viable and effective or whether they have failed or ceased to accomplish their original policy objectives. The General Assembly further finds that supporting Georgia's children is vitally important to the citizens of Georgia. Therefore, the General Assembly has determined that it is in the best interests of the state and its citizenry to undertake an evaluation of the child support guidelines on a continuing basis. The General Assembly declares that it is important that all of Georgia's children are provided with adequate financial support whether the children's parents are living together or not living together. The General Assembly finds that both parents have a continuing obligation with respect to providing financial and emotional stability for their child or children. It is the hope of the members of the General Assembly that all parents work together to advance the best interest of their children."

Ga. L. 2006, p. 583, § 10(b)/SB 382, not codified by the General Assembly, provides: "Sections 1 through 7 of this Act shall become effective on January 1, 2007, and shall apply to all pending civil actions on or after January 1, 2007."

Ga. L. 2015, p. 34, § 2/HB 347, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to all civil actions pending on or after such effective date." This Act became effective April 2, 2015.

- For annual survey of domestic relations law, see 56 Mercer L. Rev. 221 (2004). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 73 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 103 (2006).

JUDICIAL DECISIONS

Res judicata.

- Because the issue of interest on past due child support was not put in issue and decided in a prior contempt proceeding related to a father's failure to pay child support, res judicata did not bar a subsequent judgment for interest on the past due child support amounts; it is undisputed that O.C.G.A. § 7-4-12.1 applies retroactively. Dial v. Adkins, 265 Ga. App. 650, 595 S.E.2d 332 (2004).

- Trial court's grant of summary judgment in favor of the Georgia Department of Human Resources, Office of Child Support enforcement, was upheld on appeal in a class action suit brought by a recipient challenging the department's failure to collect post-judgment interest on unpaid child support since a statement of understanding, though stating it was a contract, afforded complete discretion to the department in rendering services and used the vague term appropriate services, which rendered the purported agreement too vague and uncertain to be enforced as a contract. Kennedy v. Ga. Dep't of Human Res. Child Support Enforcement, 286 Ga. App. 222, 648 S.E.2d 727 (2007).

- Court recognized that, under Georgia law, the court had discretion in determining whether to apply, waive, or reduce the amount of interest owed, but the court declined to exercise the court's discretion to waive or reduce the amount of interest owed because the criteria set out in O.C.G.A. § 7-4-12.1 had not been met. Debtor had not provided any explanation for the nonpayment of child support, other than stating that the debtor could not afford to pay the child support, which was not what the statute contemplated. In re Moore-Mckinney, 603 Bankr. 855 (Bankr. N.D. Ga. 2019).

- Legislative intent of adopting O.C.G.A. § 7-4-12.1 was to have it apply to all child support arrearages, regardless of whether arrearages accrued prior to July 1, 1996. Reid v. Reid, 232 Ga. App. 304, 502 S.E.2d 269 (1998).

Amended version of O.C.G.A. § 7-4-12.1 applies to all civil actions that were filed when the former version of the statute was effective but were still pending on or after January 1, 2007; the amended version of § 7-4-12.1 makes changes related to interest on child support arrearage that are remedial rather than substantive, and therefore retroactive application does not impair vested substantive rights. Gowins v. Gary, 284 Ga. App. 370, 643 S.E.2d 836 (2007), rev'd on other grounds, 283 Ga. 433, 658 S.E.2d 575 (2008).

- In a former wife's suit seeking unpaid child support pursuant to a judgment that had become dormant, the entire child support award could not be revived under O.C.G.A. § 9-12-61; because each payment was treated as a new judgment, only installments that became due within the ten years preceding the filing of the renewal petition were revived. Additionally, the trial court erred in applying the former version of O.C.G.A. § 7-4-12.1 and awarding 12 percent interest; only 7 percent was available. Johnson v. Collins, 354 Ga. App. 589, 841 S.E.2d 189 (2020).

- Trial court did not abuse the court's discretion in applying interest to the ex-husband's arrearage of child support or attorney fees in the court's order granting the ex-wife's contempt motion as the trial court made findings regarding the financial circumstances of both parties and declined to waive the past due interest, deciding instead to defer some of the ex-husband's interest payments until after the youngest minor child aged out of support; thus, prolonging the repayment of interest. McCarthy v. Ashment, 353 Ga. App. 270, 835 S.E.2d 745 (2019).

Cited in Mullin v. Roy, 287 Ga. 810, 700 S.E.2d 370 (2010); Spirnak v. Meadows, Ga. App. , 844 S.E.2d 482 (2020).