Agreeing to pay for other costs and expenses in lieu of paying direct monetary child support to your ex is risky because many types of contributions directly to your child can be considered "gifts" by the court.
If funds are contributed directly to your child, or directly toward expenses for your child, the court may view these payments as gifts, and will not count them as child support payments.
This is because, in the eyes of the court, the child support is to be used to assist in paying for everyday necessities of life for your child (food, shelter, etc.) while he or she is in the custodial parent’s care. Payments directly to the child, or for other expenses, do not necessarily assist the custodial parent (in the court’s view) with providing basic care for the child.
While your ex may ask you to pay for your child’s soccer camp, for example, and offer to waive a portion of the child support to account for what you contributed, the courts do not always recognize this type of arrangement.
Where I practice, the court will sometimes recognize payments in kind made for support when “the parties have agreed to and carried out an alternative method of payment which substantially complies with the spirit of the decree”, but this type of exception is narrowly applied, and cannot be relied upon to enforce informal agreements.
To protect yourself from the risk of having your contributions declared as gifts by the court, you should always pay the funds for support directly to your ex through your county clerk’s office; any expenses additional to the care of the child should be negotiated separate from your support obligation.
Read Related Article: Why You Must Avoid Informal Child Support Agreements
Another common child support mistake is paying child support in advance. Many child support obligors have made "advance" payments toward child support, or overpaid their child support obligation and wish to get credit from the court for this overpayment.
In general, the court does not recognize this type of overpayment as an advance on child support obligations. Overpayment of your ordered support amount will usually be considered a gift by the court.
In short, pay exactly what you owe, when you owe it, so that you are not seeking credit for funds you have overpaid.
If you have an informal agreement with your ex, you can open the conversation regarding putting the agreement in writing by contacting her (i.e. via email) to obtain her confirmation in writing that you are current on your child support payments to her.
If you choose not to file your agreement with the court, continue to contact your ex on a regular basis (at least annually or semi-annually) to confirm the same in writing. If she starts refusing to admit that you are current on your child support, it could be a red flag that she is reconsidering your informal agreement.
Child support can be a complex issue, and parties often get tangled in the technicalities. Seeking professional assistance from a divorce lawyer, and filing all agreements with the court, can protect you from child support obligations you thought you had already paid.
By Leslie Lorenzano
If you need help with a child support modification, contact the divorce lawyers for men at Cordell & Cordell.
Use the Child Support Calculator on DadsDivorce.com for an estimated amount of how much child support you should be paying.