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WHAT ABOUT THE LEASE? How to Pay Child Support Directly

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You may have asked whether you can pay child support directly - or even done it - and received a stern no, do not do it, it is a bad idea, it does not work and it is not allowed under our laws in response. For many cases, it is a bad idea, you should not do it, and it may not be allowed under the law that applies to your case - at least, according to the order that currently applies to your case. However, that does not make it impossible to pay child support directly, and, sometimes, it is a good idea.

Is it Possible?

By now, you have probably heard of child support "guidelines" or "formulas" or "calculators." Since the early 1980s federal enactment of the Child Support Enforcement Amendments, all States receiving federal dollars to administer child support programs -currently, all of them -- must have a uniform method for determining how much child support to pay per child. The CSEA also established a national advisory panel on child support guidelines. The panel became a part of the federal Office of Child Support Enforcement. With the panel's assistance, states were to establish numeric guidelines, also known as "child support formulas," to calculate child support. The guidelines were to be advisory only. By 1988, the guidelines garnered favor, particularly because they were predictable. Therefore, Congress passed the Family Support Act. The FSA required states to make the guidelines presumptive, not advisory.

That is, the guidelines-recommended amount should be presumed the amount of child support to order, unless the payor and/or the payee establish that the amount is "unjust or inappropriate." What is "unjust or inappropriate" depends on the nature of the case and the judge.

This is one method for deviating from the guidelines. Look for circumstances in which one parent assumes an extraordinary amount of debt (maybe the entire mortgage shortfall) or has a serious health condition.

Another is the method of payment. Even if the judge requires parents to pay the recommended amount, in most States parents remain free to determine the method of payment so long as neither parent owes support to the State (for example, for the time a child was in foster care).

Direct Pay - Third Party

One method is a payment to a third party who provides necessaries. "Necessaries" are food, clothing, shelter, education, childcare and other basic living expenses. Parents most often pay third parties to maintain control over a debt that is in the parents' names or the paying parent's name, and which would trigger a collection action and/or a poor mark on a credit report if not timely paid.

For example, you might prefer to pay the lease for the van awarded to your ex-wife because she uses the van to take your children to and from school, hockey practice, friends' events, etc., and the lease agreement is in your name. This way, you know the payment is made and you provide a necessary - transportation - for your children.

As another example, you might want to pay for your children's cell phones so that you can correspond with them at any time. Just be sure your judge treats a cell phone as a "necessary" and not an "extra."

As a final, and most common, example, you may prefer to pay the home mortgage because you are the sole mortgagee and your children will reside in the home. This is one way to deal with a mortgage in one parent's name for a home the other parent receives as a result of a settlement or a trial. Be sure your divorce decree specifies what happens if you cannot pay the mortgage, who claims tax benefits and whether either parent can renege on the agreement or request a modification upwards or downwards.

Whatever you do, do not pay a third party without permission from the other parent and the judge in your support order. If you do not have this permission, then, in most States, your payment is a gift, and you will not receive credit for it. So, you could end up paying twice.

Direct Pay - Other Parent

Another method is to pay the other parent directly, rather than the State. States vary on options here, so be sure to speak with an attorney about the options available to you, but, in many States, the parent obligated to pay child support makes a monthly payment to the State Support Disbursement Unit (the "SDU" or the "IV-D agency"), which then allocates the payment between State-owed fees and child support, distributes it among the parent's files (if the parent has more than one child owed support), then disburses it to the receiving parent. As you can imagine, this process takes time, sometimes months, and it is ripe for human error.

Parents in a bind, for example when a child has an unanticipated school expense, usually want support now. The risk is, you could make a direct payment out of the goodness of your heart - you are a parent, after all - but not receive credit for it.

You may prefer to pay your ex directly. That is ok, so long as your child support order allows direct payments and your relationship with your ex suggests the two of you will not fight, later on, about whether you actually made the payment.

Mistakes to Avoid

If you are contemplating direct payments, either to a third party or to the other parent, avoid these common mistakes:

Payment Without Permission - If you pay the other party or a third party directly and do not have permission from the judge, then in most States that payment is conclusively a gift, and you will have to pay the parent as specified in your support order anyhow. This means, you pay twice.

Using Cash - It may be a pain to write a check or set up a direct deposit from your account to your ex's, but it is a must. Do not pay your ex in cash - you are asking for a disagreement in the future over whether you paid, how much you paid, and what your payment was for. A few dollars here and there may seem insignificant - would you really write a check for $20 for your child's cough medicine? - but the "here and there" adds up. If you must use cash, you must obtain a receipt from your ex that specifies the date, the amount and what the payment was for.

Trusting You Ex - If you agree to pay the mortgage directly, do not give your ex the money with the understanding that she will make the mortgage payment as she pays the other household bills. You made an agreement for a direct pay method for a reason, and you need to follow it. Who's to say your ex will not keep the money, or make the payment late, or deny it altogether?

Forgetting "What-If"s - It may be a good idea to agree to pay the van lease, the mortgage, etc., directly now. You are in a stable job, have the money and want to keep this control. But, what happens if you lose your job? What happens if you want to sell the home? What if you ex becomes employed and you would otherwise qualify for a downward support modification? Be sure your support payment method contemplates these "what-if"s by including language that allows for support modifications, that specifies when and how direct payments terminate, that clarifies whether the parents intend for support to continue after the child reaches the age of majority, and so forth. The "what-if"s may never happen, but, if your agreement is to last, you must guard against them.

These are easy mistakes to make, but they are also easy to avoid -- with proper planning, that is. So, if you are contemplating direct child support payments, have a frank and thorough discussion with your attorney about your options and the law that applies to them.

Because making direct payments may not be such a bad idea after all.

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