When a child is born, both parents have a financial responsibility for that child. It’s not uncommon, once the parents separate, for both parents to contribute to the daily needs of the child; they share time with the child, school expenses, extracurricular activity expenses, purchase clothes, and in many cases, one parent gives money directly to the other parent for the child , oftentimes even without a formal court order. However, time and again, at some point, the parent who receives that money from the other parent alleges that the parent has not been making child support payments as ordered. This is where problems arise, because if the paying parent can’t prove that they have in fact been financially supporting their child, they may be hit with child support arrears (back child support), which can have detrimental financial and legal effects including increased wage garnishments, contempt charges, bank levies, license suspension, and more.
Here are 7 proactive things you can do to make sure you get credit for child support payments.
Avoid paying in cash
Although typically “cash is king,” that is not true when it comes to child support cases. In fact, paying child support in cash is one of the biggest mistakes often made by the non-custodial or paying parent. Cash is hard to track. Unless you are given a receipt from the receiving parent for the cash payments you make, if that parent one day alleges that payment was never made, you will have to go too far lengths to prove that you actually did make payment directly to the parent.
How to prove cash payments?
If you’ve already made several payments to the other parent in cash in the past, all hope is not lost if claims of non-payment are made, but you will have to do a little leg work, and it may or may not suffice, depending on how diligent you’ve been keeping track of things.
• Method 1– Obtain copies of your bank statements that align with each payment you made. If you withdrew money for your child support from the bank, or made transfers with the note “child support,” indicated, you may be able to show that you routinely withdrew cash payments specifically for child support.
• Method 2– Subpoena the other parent’s bank records. When you have a pending Family Law matter, you can often take advantage of what’s known as the “discovery” process; this is the way lawyers are able to obtain information from the other party in your case that they may not voluntarily provide. If you subpoena the other parent’s bank records, you may be able to show that your checks were in fact cashed or deposited into their bank account and that they did actually receive the payments. This method goes hand in hand with having your bank records, as you will be able to cross-refer their deposits to the withdrawals that came from your account.
Use checks or money orders
If you pay using a check, it’s usually pretty easy to obtain copies of canceled (cashed) checks from your bank. Using Money orders is a slightly less efficient way to track payments, but if you make a copy of the completed money order and save the money order stubs/receipts, this may suffice.
Write “child support” in the memo of each check or money order– When using checks or money orders, it’s important to note “Child Support” in the memo of the check or on the stub.
It’s so easy to make a habit of immediately trashing receipts in an effort to avoid clutter. However, in the case of caring for your child, it’s essential that you keep receipts for any and all payments and purchases made for the benefit of your child. I like to say, it’s better to have too much than too little – it’s okay to go overboard. Set up a file, call it “child expenses,” and put any receipts in that file. And to take it a step further, make a note on your receipts, circle the date/time, amount, and write what the payment was for. This way, if the issue of whether you take care of your child come up, you will have plenty of documentation to show what was purchased, when, why, and for how much.
Communicate with your spouse regarding each payment in writing
In case all else fails, always C.Y.A. (“Cover YOU’RE A* %). Good Lawyers do it when they work on your behalf and you should do it too. C.Y.A. is important for every aspect of your case, but in this aspect, all it requires is that you send a letter, text or email to the other parent, confirming delivery/receipt of the child support payments. That way, you can use this document as evidence or an exhibit at your trial or hearing later to show that payments were made and/or received.
Go with the garnishment
In most cases, when a child support order is made, a wage garnishment will be issued. This means that your child support will be automatically deducted from your paycheck. This is especially true in cases where the local child support agency is involved. However, in some cases, the parents can agree that support payments will be made directly to the other parent. More often than not, this is a bad idea, especially in cases of high conflict between the parties, because at some point, claims of non-payment are made. So, to be on the safe side and avoid unnecessary litigation for the sake of proving that you paid your child support, it’s likely best that you request or agree to wage garnishment – this way there are trackable records of payment and your payments will be made on time.
Keep an Indisputable Record of Maintenance and Child Support Payments
In the event that you become responsible for paying child support and/or spousal maintenance, it is essential that you keep a detailed record of each payment made. If ordered to pay child support, it is likely to be for a period of several years. The duration of a spousal support order varies depending on the parties’ situation.
Why It’s Important to Keep a Record
Often times, a court orders your payments made payable to the Family Support Registry (FSR). The FSR then distributes the payment to the obligor. The FSR keeps track of the date and amount of your payment. However, it is not always clear as to whether your payment was for child support or spousal maintenance. Missing just a few payments can cause you severe frustration several years down the line.
For instance, assume you and your spouse or significant other have a child together. Further, assume that soon after your child is born, your relationship becomes tumultuous, and the two of you decide to separate. Depending on several factors used to calculate child support, it’s likely that one party will be required to pay the other a child support payment each month. You could pay twice per month depending on the amount. To put this into perspective, if you pay child support for 19 years, that is 228 monthly payments or 456 bi-monthly payments.
The sheer number of payments is one reason why it is imperative that both the obligor and obligee keep a record of each payment made, including, but not limited to:
• Date of payment,
• Copy of the form of payment, such as a check, wire transfer, or money order,
• Address if mailed,
• Date cashed, if traceable, and
• Whether that specific payment was for child support or spousal maintenance.
Keeping track of what the payment was for is essential, due to the high-interest rate imposed for missed child support and spousal maintenance payments. Child support interest is higher, 12% currently, compounded monthly. Interest applied to unpaid spousal maintenance is 8%, compounded annually.
Consequences of Missed Support Payments
Not only is it important to meet your obligations if you are the obligor, but just imagine the conundrum you may face should the obligee seek to recover any alleged missed payments if you do not have sufficient records to prove the payments were made. Under Utah law, if any court-ordered installment of child support or maintenance is due and unpaid, it does not automatically becomes a final money judgment. Consequently, you need to file a motion to enforce the decree of divorce or the child support order in order to collect. Remember, each state is different.
Due to the various durations of time which the child support and/or spousal payments may be required, if you have not maintained a record of your payments, it may be difficult to defend yourself. Never rely on your bank or financial institution to safeguard these records for you, as the method of payment used ten years ago may now be obsolete due to constantly changing technology.
Support Payment Methods
Once the court calculates the income of both parents, it will determine what child support is necessary, if any. And if the court orders child support, there are typically two different ways those payments can be made.
In some states, the law requires that payments are made directly from one parent to another. In other states, however, the law requires indirect payments where one parent issues payment to the state, which then distributes the support payments to the other parent. And in cases where you get behind on your payments, the state can garnish your wages in order to cover your missed support obligations.
Proof of Direct Payments
If you are required to make your child support payments directly to the other parent, it’s imperative that you collect proof of those payments at the time you make them. Because other forms of payments typically have a paper trail, direct payments are often where conflicts over child support originate. This is especially true if you pay your obligations with cash. That’s why cash should only be used as a last resort. A check or money order will leave a paper trail in case you ever need to prove your payment. A cashed check or a money order stub are strong evidence that a payment has been made.
If you have previously made payments in cash, all is not lost. If a dispute arises, you may be able to use your bank records to show withdrawals in the amount owed. For any future cash payments, it is wise to either request a receipt or attach a letter acknowledging the payment. Be sure to keep copies of these documents.
Proof of Indirect Payments
In most cases, it’s much easier to prove indirect payments. Typically, when you make a payment to a state agency, you will be given a receipt. The agency will also be required to keep a log of your payments, so the evidence should always be available. That being said, it’s in your best interest to keep copies of every receipt.
Proof of Garnishments
If your employer garnishes wages for your child support, there will be company records that reflect the amounts collected. If you are required to provide evidence of the payments, you can obtain copies of the company’s records that will reflect the amount withheld from your paycheck.
Protect Yourself by Keeping Records
The determination of child support is made at the initial divorce proceeding. Altering a child support order after the fact is possible, but it’s easier to obtain a favorable child support arrangement during the original divorce proceeding.
Unfortunately, disputes regarding these payments arise from time to time. That’s why it’s important to keep evidence of every payment you make. In a worst case scenario, the court could mandate you to make the same payment again if you aren’t able to prove you made it the first time.
Regardless of whether you are responsible for paying child support, maintenance, or both, missing just a few payments may cost you more than you bargained for, including the time required to trace your payment history. The needless expense associated with re-creating your payment history is entirely avoidable, so be sure you maintain an accurate, detailed record of each payment made.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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