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  1. #1
    Join Date
    Jul 2015
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    4

    Default Will a Child Support Order Take Into Consideration Past Voluntary Payments

    My question involves child support in the State of: New York

    My wife and I separated in December 2012.

    She took our child with her to a new apartment while I looked for a new apartment to live. I figured we would work out something civilly once I found somewhere new to live. I agreed to give her $500 a month for our kid. I have paid her 500 a month up until recently I fell behind due to being let go from a job, although I still make payments just not as much.

    I never made that much to begin with, and I still do not make a lot. I roughly made/make around $20,000 yearly before taxes. She makes about $50,000 yearly before taxes.
    In addition to paying the 500 a month, I also provide private transportation from her school back to her mother's house as there is no school bus.

    I of course provide her with food while I am with her, and clothes, toys etc on holidays and her birthday. She has state health insurance so neither of us pay for medical expenses.

    Recently I filed for joint custody to finally to finally put an end to our disagreements about where/how our child should be living.

    There was NO custody or visitation in place, or any child support order. We are currently still married as well. It is my understanding that we both have equal custody as a married couple with no court order in place.

    My question is that pending the turnout of the custody order (she opposes joint custody), if I am to pay back support will this take into account the payments I have already made? I paid her in cash, but I do have text messages dating back to 2 years ago, and recently of her acknowledging the payments that I would give her. Unfortunately this is my only proof, if it is even admissible. Regardless of how the custody turns out I still would want to pay her money each month, but she insists she needs at least 500 each month, which given my income is not how much the state guideline would require.

  2. #2
    Join Date
    Jul 2006
    Posts
    1,421

    Default Re: Back Child Support

    Was the money court ordered? If not, it will most likely be considered a gift unless she agrees.

  3. #3
    Join Date
    Jul 2015
    Posts
    4

    Default Re: Back Child Support

    There was/is no court order.
    Would it still be considered a gift if she has explicitly states multiple times in text messages that it is support for our kid?
    In addition she has stated that it is money I "owe" her. If it really was a gift I wouldn't owe anything, as gifts can't be owed..?

  4. #4
    Join Date
    Jun 2015
    Posts
    988

    Default Re: Back Child Support

    I'll bet on Ohiogal being right...it's a gift ..and no good legal reason for STBX to give you credit.

    Me, Id save that money for a good lawyer..you will need it...

    Absent a custody order to the contrary, why are you not much more assertive and playing a key time role,in childs life?

    Why not you as primary custodial parent?

  5. #5
    Join Date
    Jul 2012
    Location
    So Cal
    Posts
    854

    Default Re: Back Child Support

    It's not a matter of betting on OG being correct - she IS correct. Until such time as a court sets child support, you are not under any legal obligation to pay her a dime. Morally? That's a different story, but legally? Nope. You'd probably be better served squirreling away as much of that money as possible since in NYS (as with most states) child support is typically made retroactive to the date of filing.

    Also, in NY child support is set at a straight percentage of income. For one child, that equals 17% of the NCP's gross income. If you are making around 20k per year, that would come out to roughly $255 per month, so you've already voluntarily paid more per month than mom can expect a court to order. BUT, as Ohiogal stated, the court is almost certainly going to deem those monies as gifts.

    One more point: If your child is receiving aid from the state, it is highly likely that mom will see very little of that anyhow, since the state will want to be reimbursed for its expenditures towards your child's healthcare.

  6. #6
    Join Date
    Jun 2014
    Posts
    3,212

    Default Re: Back Child Support

    The money you've been.giving her, I'm sure she isn't reporting to the state.

  7. #7
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Back Child Support

    But it's not set in stone.

    Several of us here (and OG is one ) are familiar with at least one or two NY cases where the voluntary payments were considered to be child support, even though the receiving parent disagreed.

    And to custody: What's the current timeshare and how long has it been in place?

    Most of you know where I'm going with this.

  8. #8
    Join Date
    Jul 2015
    Posts
    4

    Default Re: Back Child Support

    Quote Quoting EA1070a
    View Post
    It's not a matter of betting on OG being correct - she IS correct. Until such time as a court sets child support, you are not under any legal obligation to pay her a dime. Morally? That's a different story, but legally? Nope. You'd probably be better served squirreling away as much of that money as possible since in NYS (as with most states) child support is typically made retroactive to the date of filing.

    Also, in NY child support is set at a straight percentage of income. For one child, that equals 17% of the NCP's gross income. If you are making around 20k per year, that would come out to roughly $255 per month, so you've already voluntarily paid more per month than mom can expect a court to order. BUT, as Ohiogal stated, the court is almost certainly going to deem those monies as gifts.

    One more point: If your child is receiving aid from the state, it is highly likely that mom will see very little of that anyhow, since the state will want to be reimbursed for its expenditures towards your child's healthcare.
    Very interesting. Thank you. Just another question, since her mom has NOT filed anything, the retroactive date could not be determined as our date of separation? ie: when i originally started started giving her money. It is only when and if she files that the retroactive date would start at that date of filing?

    - - - Updated - - -

    Quote Quoting HRinDEVON
    View Post
    I'll bet on Ohiogal being right...it's a gift ..and no good legal reason for STBX to give you credit.

    Me, Id save that money for a good lawyer..you will need it...

    Absent a custody order to the contrary, why are you not much more assertive and playing a key time role,in childs life?

    Why not you as primary custodial parent?
    I am a daily part of my child's life. I just thought we could work things out between us without spending time or money that neither of us really has in court. Unfortunately I have learned the hard way that there is no reasoning with someone who only wants things done their way, which is why I did file for joint custody.

    - - - Updated - - -

    Quote Quoting Dogmatique
    View Post
    But it's not set in stone.

    Several of us here (and OG is one ) are familiar with at least one or two NY cases where the voluntary payments were considered to be child support, even though the receiving parent disagreed.

    And to custody: What's the current timeshare and how long has it been in place?

    Most of you know where I'm going with this.
    Theres nothing legally in place, but I drive her home from school everyday, and have her at my house every weekend. This was up until recently in July when her mom decided I don't need to see her, ignoring texts, calls, doorbell etc. Only when I filed for joint custody did she finally let me see our kid. Then she got angry again and cut me off once again.

  9. #9
    Join Date
    Jun 2015
    Posts
    988

    Default Re: Back Child Support

    I do NOT know the scorecard for NY...but Until you get counsel otherwise, I would Maintain/Max up my daily role with good credible records of same ...and if possible...maintain/max the NIGHTS spent with you...some states count nights

    And you best engage good counsel ...absent same your outcome may be the same Christians v lions in ancient Rome if Mom sends in a lion.

    - - - Updated - - -

    Absent an order to the contrary your rights as parent are the same as Moms....

  10. #10
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Back Child Support

    Quote Quoting Ap3302
    View Post
    I agreed to give her $500 a month for our kid..... I roughly made/make around $20,000 yearly before taxes.... I paid her in cash....
    When I hear a story like that, my first thought is, "Whether in full or in part, this guy gets paid under the table and is paying his child support with undeclared, cash income."
    Quote Quoting Dogmatique
    View Post
    Several of us here (and OG is one ) are familiar with at least one or two NY cases where the voluntary payments were considered to be child support, even though the receiving parent disagreed.
    In most cases, parents actually don't try to turn this into an issue -- the recipient doesn't try to mischaracterize past payments as a gift, as opposed to support. In the case under discussion, the text messages may help with the characterization of the payments, depending on how they were acknowledged. In a lot of the "gift" cases, the payor is trying to convince a judge that past payments of cash given to the child, or clothing and gifts provided to the child, should count as "child support".

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