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Overpaid child support, now what?
July 31, 2011 12:18 AM   Subscribe

Impact on child of lowering child support? Shot Version: Have been overpaying $1k per month on child support, I'm owed a credit. Will my child hate me if I lower the support and try to take the credit?

Long version:

I pay a large amount of child support currently (around $2k per month). This is due to the fact that it's easier to pay than deal with the crazy ex making things difficult for me. I've always just gone off what she said usually because she goes into harassment mode until I give in. She doesn't work so I just assumed it would max out to something like that and never checked. She's never provided childcare receipts and I pay all of his medical, and my travel to see him (I'm across the country), in addition to the CS.

Recently, she threatened taking me to court to get more support and denying my right to see my child (he does about 1/3rd of the overnights per year with me).

Because I was terrified it would go up to something like $3k and put me totally into poverty, I hired a lawyer to help me out...and it turns out I've been overpaying for a while and the amount should drop significantly. In addition to that I'm owed a credit on what I've overpaid.

Lawyer suggests I cut back on the support and pay the minimum after the credit has been used up. However, I'm concerned about the impact to my child if I do this. She already tells him that I'm a bad father and don't care about them. This could just add confirmation to that for him.

Also, she left me several years ago to be with someone else, but has twisted it in her head over the past few years that I left her and my son to fend for themselves...she plays the victim quite well.
posted by MeatFilter to Human Relations (32 answers total) 1 user marked this as a favorite
 
How old is the child?

Could you possibly deposit the difference into a savings fund of some sort _for_ the child, maybe a college or car fund? If you can explain this to the child, and make sure you show him the proof (so his apparently-crazy mother can't convince him you're really spending it on vacations or something), then it might work out, but I don't have experience dealing with crazy ex-spouses, so YMMV a whole lot.
posted by amtho at 12:32 AM on July 31, 2011 [1 favorite]


When you say she isn't working and you're paying $2k a month to her, is that solely CS or is that CS& alimony?

If it's both and that's what she uses for them to both live, then I would think that cutting back would be harmful to your son. You would be taking away money for food, housing, and living neccessities.

On the otherhand, if you're paying $2k and she has a partner or spouse that's paying for living neccessities, then cutting back is not wrong on your part.

Without going into specifics, we went through a cut back in childsupport. Ex-wife agreed and we pay her what we all agreed upon. Which is significantly less than we what were paying her.

Does it make my husband a bad father? No. Because we pay her and also help with other things. We pitch in half for schooling, sports, we pay insurance for him, and any other various things that might be needed.

My stepson has not in any way noticed that we are paying less to his mother. He doesn't want or think ill of his father.

Paying so much in CS doesn't make or break you as a parent. It's the relationship you have with the child, the love you have for him/her,the calls to see how their day went and your time together being well spent.

She can say what she wants about you, if you go through with the cut back, but it's up to you to prove her wrong with your actions. In the end that's what is going to matter.
posted by Sweetmag at 12:38 AM on July 31, 2011


When you say she isn't working and you're paying $2k a month to her, is that solely CS or is that CS& alimony?

That's CS only. I paid her a lump sum alimony, which hurt really bad, but was a lot of money for her to survive on for a while without working.


On the otherhand, if you're paying $2k and she has a partner or spouse that's paying for living neccessities, then cutting back is not wrong on your part.

She's on her own, no one is willing to stay with her for very long.


Could you possibly deposit the difference into a savings fund of some sort _for_ the child, maybe a college or car fund?


I have a monthly deposit of a few hundred into his college account already. I suppose I could up it as well.


Paying so much in CS doesn't make or break you as a parent. It's the relationship you have with the child, the love you have for him/her,the calls to see how their day went and your time together being well spent.


I agree. Just concerned about how the mom will portray me. Perhaps some sort of middle ground where I just pay slightly less than what is required until the credit is used up. But she now depends on the CS for living because she used up all the alimony already.
posted by MeatFilter at 12:49 AM on July 31, 2011


I've never heard of a credit in relation to child support, but I would imagine that decreasing child support and requiring a refund for over-payment would impact your child's quality of life.

If she is talking negatively about you to your child and using the child support to support herself, then I think you need to ask yourself whether it's in your child's best interest to remain with mom as a custodial parent.
posted by Hiding in my sock drawer at 1:03 AM on July 31, 2011 [4 favorites]


She's on her own, no one is willing to stay with her for very long.

And yet your child is having to stay with her. Could you try to get custody? I don't know how bad your ex-wife is but my dad left me with a crazy and abusive mom and it's been much harder for me to forgive him than her.
posted by hazyjane at 1:12 AM on July 31, 2011 [21 favorites]


Whilst your lawyer is telling you that you should be paying less, your ex wants you to pay more. I don't think your ex is going to believe that your lawyer is right. And, since she has custody it's going to be easier for her to retaliate if you unilaterally reduce the child support payments.

I think that for a better outcome, you need to either negotiate child support payments with her (or through your respective lawyers), or get a court order setting them. However right you may be, I don't think that unilaterally reducing child support payments is going to go down well. At all.
posted by plonkee at 1:18 AM on July 31, 2011 [1 favorite]


You have a few different issues.

One is, will your kid be OK once you're not paying as much CS as you used to? Maybe not, if his mother isn't working and the CS is paying all their expenses. Two possible solutions: you sue for custody and take care of your kid yourself, or you continue to pay $2K/month -- with the understanding that you're paying more than is legally mandated.

The second problem is that of your ex-wife badmouthing you. This is out of your control, and if she's prone to it, she's probably doing it already. Your only real recourse is to spend as much time with the kid as possible, express your love to him/her in as many ways as possible, and trust that when they're old enough they'll be able to figure it out for themselves.
posted by hungrytiger at 1:30 AM on July 31, 2011


Also -- I am not a lawyer and that was not legal advice -- but does your wife have full custody of your kid? I couldn't tell from your question.
posted by hungrytiger at 1:32 AM on July 31, 2011


You mutually agreed to the original amount. You are now coming to a new agreement on the new amount. Although there may be a legal basis to your "credit," it's hard to justify that credit by my playground ethics. Start paying the new amount per your new agreement immediately, and consider your previous payments as appropriate for a different time.

Plus... it sounds like you know that Crazy Ex hasn't saved the extra child support you've been sending. You may think you're punishing her by forcing her into credit card debt, but you'll also punish your child.
posted by samthemander at 2:05 AM on July 31, 2011 [1 favorite]


I overpaid all the time (not to that extent as you describe, but still), most of the amounts were set by her request. I sometimes ground my teeth about it, not having that great an income most of the time, but I tried to comply.
I would say to crazy ex that you've done your homework and found out that the amount you pay now is way over the reasonable (or legal or whatever) limit, and that taking to court would bring her a massive disadvantage. Then I would keep paying her that amount and note even think about having any of it back. The "credit" theory, as others said, isn't really going to do it.
(I have a great relationship to my kids, now 19 and 22. Worth every penny).

(The victim-playing is a guilt-coping mechanism. It hurts like hell, but don't take it too hard. Good luck.)
posted by Namlit at 3:36 AM on July 31, 2011


[...not even think...]
posted by Namlit at 3:37 AM on July 31, 2011


I just wanted to pop in and speak to the issue of your relationship with your son - I knew growing up that my dad paid child support, but that wasn't how I knew he loved me. Phone calls, birthday cards, visits, and the fact that in every house he ever moved into, my brother and I each had our own rooms? That's how I knew.

If you're worried about paying less in child support, make sure that your son knows that you're there whenever he needs you, whether that need has anything to do with money or not. Trust me - he probably knows more about the money situation than you think he does, but the money isn't what he needs most from his dad.
posted by amy lecteur at 5:20 AM on July 31, 2011 [2 favorites]


i've been in you situation (except for the overpayment part) and have some thoughs to share:

--when you ex says she's going to take you back to court to get more money, she's bluffing. she'll find it hard to find an attorney and if she does they'll probably tell her the same thing yours tells you. if you want to keep the status quo, tell her to go ahead and sue. she probably won't sue but will make things harder for you and your kid.

--it sounds like custody might be the better option for you. however, it will most likely cost a lot more money then your child support overage and will probably be pretty brutal since your ex will fight to hold on to her meal ticket. unless there's a real clear cut reason (lke she has no more teeth due to meth) that path will cause a lot of pain. the only question to answer here is 'what is best for your child?'

it took me five years of legal fighting for me to get custody. it didn't seem to matter to the courts that my ex was unemployed and living off child support. after child support stopped my ex was homeless within weeks. 10 years later and she's still homeless.
posted by lester at 5:57 AM on July 31, 2011


hazyjane is telling you the truth here, but I know custody issues are hard.

And yet, I hope I hope I hope you can somehow find a great lawyer and re-visit the custody issue.
posted by jbenben at 6:11 AM on July 31, 2011


A lot of this may depend on what state you're in. Trust your lawyer if he or she tells you that it is possible to lower your monthly payment and rely on a credit.

It sounds like the two of you have been "working" stuff out on your own? Once you get into it, you may find out that most states do not tolerate one parent trash talking another and that she's going to be up to her eyeballs in her own shit if she doesn't stop.

And, if your son is old enough, no, he won't hate you if he understands your side. Show him that you're putting money in a college account for him. When he's with you, explain that using the child support "credit" leaves you more money to do things when you're together with him -- a camping trip, a room re-do, whatever (not *stuff* which makes it look like you're trying to buy him, but experiences which are awesome).

But really, a lot of your worry can be assuaged by talking to your lawyer. He or she has seen this one million times and knows how to handle it.
posted by motsque at 6:21 AM on July 31, 2011


I've never heard of a credit in relation to child support, but I would imagine that decreasing child support and requiring a refund for over-payment would impact your child's quality of life.

Yeah, never heard of a credit either. I know you don't specify the state, but I would be very very careful to make sure your lawyer is a seasoned divorce/family lawyer who knows what he/she is talking about.

It's also not so clear how a reduction in child support will or will not affect a child's life, as some people think. Child support is not just for the child; it can be meant to ensure that the child lives in an appropriate comfort based on the non-custodial parent's income level. So, it IS appropriate for the parent to use child support for their own expenses because having a parent able to buy certain amenities or live a certain lifestyle is part of the overall well being that courts try to protect for the child. Child support isn't just "the child's money," is what I'm saying.
posted by jayder at 6:58 AM on July 31, 2011 [1 favorite]


A compromise might be to pay the minimum child support the courts require of you, but then bank the rest in a savings account the kid only has access to. And work with the kid on budgeting and how to spend the money. And/or give them a generous allowance.
posted by gjc at 8:11 AM on July 31, 2011


She doesn't work so I just assumed it would max out to something like that and never checked. She's never provided childcare receipts

You are essentially the sole support for that household. I'm confused as to why she isn't working and unclear as to why there are childcare costs if she isn't, but the fact is that she has custody of your son and while 2K a month is a LOT in CS, it would be very hard to feed. cloth and shelter a child on significantly less than 24K a year. Obviously you don't want to drive that household into poverty since your son lives there.

How old is your son? Is she at home with him because she can't earn more than childcare costs before he is school aged?

I would frankly use this overpayment as leverage to get her to move her wage earning life along. Your overpayments are at this point voluntary and she needs to know and acknowledge that. If she could stop trash-talking you and get a job, that would be tops. Working with her earnings potential and some kind of schedule based on your child's age, I'd be looking at diminishing payments reducing to the statutory minimum in 12 or 24 months or something.
posted by DarlingBri at 8:35 AM on July 31, 2011


To be honest--my father went to court at one point during my childhood to try to have his child support lowered (he failed). I (now 36) have always held this (among other things) against him and thought less of him for it. Just an anecdotal point, FWIW.
posted by mkuhnell at 9:08 AM on July 31, 2011 [2 favorites]


I don't think there's really a "minimum" with child support. There's a court-ordered amount, and you are obligated to pay that amount. By all means, don't go giving your ex more than that. You can do other things for the kid if you want to.

I don't know your ex, but if she's as manipulative and prone to twisting things as it sounds, no matter what you do she is going to be the victim and you are going to be a jerk and a bad father in her narrative.

This idea that you're owed a refund on overpaid amounts, though, strikes me as questionable, and could work a real hardship on your kid if she's already burned all the money she had and now has no income.
posted by J. Wilson at 9:46 AM on July 31, 2011


I'm surprised that the child support and visitation was not set by a court order, and that your attorney is not recommending that you get a court order (or order amended) to sort this out. Maybe this is not done in your country/state, but if it is commonly done, I'd ask the lawyer why he's not recommending this as the obvious next step.
posted by Houstonian at 9:47 AM on July 31, 2011


Former family law attorney here. IANYL. The state I practiced expressly in does NOT allow for a "credit" of any kind in child support nor have I ever heard of such a thing in any other state. As a matter of fact, my jurisdiction has a code section that says child support cannot be decreased retroactively, only increased retroactively. Further, any change can only be made effective 90 days after service of a modification application on the other party.

I point this out only to show that changes and amendments to child support orders are complicated and that you need to rely upon the advice of an experienced child support attorney in your jurisdiction.

As for the impact on the child, that's entirely dependent on how well you and your ex get along and are able to function as "parents" vs being "ex-sposues." There's a difference. From the sounds of it, at least one of you can't, so you should expect the child to be affected. No court order is going to change whatever the established behavior/emotional behavior dynamics are between the two of you. That's not what courts are for; that's what therapy/counseling is for.

I point that out so your expectations can be adjusted as to what can reasonably be expected from each venue (legal v. therapeutic). You can't buy milk in a hardware store.

Get a good attorney and therapist. They're two different people and will often give you conflicting advice because they each have a different job to do. Your job is to sort out what's most important to you at any given point and make the final decision.

Good luck.
posted by webhund at 10:55 AM on July 31, 2011 [2 favorites]


I've never heard of a credit...
Yeah, never heard of a credit either....
The state I practiced expressly in does NOT allow for a "credit" of any kind in child support nor have I ever heard of such a thing in any other state...


IAAL (but IANYL, obviously). I practice in Michigan where child support credits are allowed. It seems like I most commonly see them in a divorce judgment where the payor originally started making payments of $X.XX when the parties separated, but the court determined through the formula that it should be $Y.YY. So on the date the order is entered, the payment is considered $Y.YY going forward with "credit" covering the difference until it runs out. Some child support orders I've dealt with recently avoid this by explicitly saying "No credit shall be given for previous child support payments made in excess of the currently ordered amount blah blah blah."

Retroactive decreases are also allowed if certain criteria are met (usually loads of bad faith / fraud on the part of the recipient parent).
posted by motsque at 11:03 AM on July 31, 2011 [2 favorites]


It's nearly impossible to buy the opinion of a child's other parent, through support payments. They'll cash your checks, in whatever legal amount you send, and sing your praises in a minor key, or spit on the ground at the mention of your name, as they choose, regardless. But you can't worry about that, you can only worry about what you can do to keep your relationship with your child positive, and healthy, and to see to the child's welfare.

Kids get hipper the older they get. They may not get family dysfunction sorted at the time it is happening, but, by and large, they're never fooled much by the age of 15.
posted by paulsc at 1:25 PM on July 31, 2011 [1 favorite]


I would warn her that this are going to change, but give her time to get prepared for the drop in income. I would probably give her three months at your current rate and then start dropout it $100 to $200 a month until younger down to whatever the aaprriate amount is so that you can start getting back the money you are owed.

I think dropping it down slowly will hurt her enough financially to motivate her to get a job, but won't leave her destitute if she's living check to check.

This is NOT legal advice. You should absolutely have your attorney verify that whatever changes you make are consistent with the custody agreement and the laws in your state.
posted by whoaali at 7:42 PM on July 31, 2011


I don't know how bad your ex-wife is but my dad left me with a crazy and abusive mom and it's been much harder for me to forgive him than her.

That kind of hits home with me. I've always thought I would have a losing battle for custody because courts are so biased towards women. I figured it would be less painful to not go through custody issues.
posted by MeatFilter at 11:31 PM on July 31, 2011



Also -- I am not a lawyer and that was not legal advice -- but does your wife have full custody of your kid? I couldn't tell from your question.


She has physical custody, but we have join custody. So I still get regular visits and he spends about 1/3rd of the year with me.
posted by MeatFilter at 11:32 PM on July 31, 2011


You are essentially the sole support for that household. I'm confused as to why she isn't working and unclear as to why there are childcare costs if she isn't, but the fact is that she has custody of your son and while 2K a month is a LOT in CS, it would be very hard to feed. cloth and shelter a child on significantly less than 24K a year. Obviously you don't want to drive that household into poverty since your son lives there.

That's 24k net, so gross, you could say at least 36k and she gets help from her parents as well. She took our car that was paid off, plus the alimony lump sum.

I'm surprised that the child support and visitation was not set by a court order, and that your attorney is not recommending that you get a court order (or order amended) to sort this out. Maybe this is not done in your country/state, but if it is commonly done, I'd ask the lawyer why he's not recommending this as the obvious next step.

Attorney is moving it to be settled by court order. But Monday is the 1st and she recommended I pay the agreed upon amount at the time of divorce (we have a separation agreement)...
posted by MeatFilter at 11:39 PM on July 31, 2011


I would warn her that this are going to change, but give her time to get prepared for the drop in income. I would probably give her three months at your current rate and then start dropout it $100 to $200 a month until younger down to whatever the aaprriate amount is so that you can start getting back the money you are owed.


I like this idea a lot, gradually decreasing it. I don't know if I'll take the credit, I don't "need" it right now. But perhaps I can use it as leverage to get more time with him during the year.
posted by MeatFilter at 11:42 PM on July 31, 2011


Thank you everyone for the advice you have given me. Has helped significantly.
posted by MeatFilter at 11:42 PM on July 31, 2011


...denying my right to see my child...

Well, don't worry about that one. There's no way in hell she can do that. Visitation is as much of a right for the non-custodial parent as for the child, and if she tries to pull that shit on you, lawyer up big time.
posted by BlueHorse at 12:00 AM on August 1, 2011


I figured it would be less painful to not go through custody issues.

In my situation, it would have helped to know my dad wanted me even if he couldn't have me. Instead I heard my parents argue over which one was going to have the burden of custody which neither wanted. If you were to go through a custody battle and lose, at least your child would know you tried, and maybe I'm biased but I think that has to be worth something.
posted by hazyjane at 12:50 AM on August 1, 2011


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