Child support on its face is simple: A court orders a child support amount to be paid monthly, and you pay it. However, as with most things in the law it is not always that simple. As an example, what happens if you directly pay expenses for your child and deduct the amount for those expenses directly from your child support? Or, what happens if you stop paying child support at all because you have been given the children by the other parent for whatever reason? Do you still owe the child support? Can you be sued for child support arrears in a Georgia court?
The Law Regarding Child Support in Georgia
Under Georgia law, two things are firmly established:
- No agreement made by the parents (that has not been entered to change child support between the parents) is enforceable.
- The payor of child support is not entitled to credit for voluntary expenditures in place of paying child support
What often happens is that parents will agree that the payor of child support can pay a lesser amount than the court order, for some reason or other. And this agreement for less can continue for years with no complaint. Or, the payor of child support will decide to voluntarily pick up an aspect of the child’s expenses and deduct the difference out of the child support payment. This can happen for years as well without complaint. Then boom! You will be served with contempt of court papers for failing to pay child support. You will be hit with interest, attorney’s fees, threatened with jail and the amount of child support arrears you are said to owe can be in the thousands.
You believe you had an agreement and you know there was never a complaint during all those years, so you think you’re in the clear. While the defense that it’s unfair because you made an agreement sounds reasonable, under Georgia law a court has no power to retroactively modify your child support even if you had an agreement! And agreements to modify child support amounts are not enforceable unless they are made into a formal court order. That agreement you had is worthless!
Two Exceptions Under Georgia Child Support Law:
You have two options according to Georgia law when it comes to an agreement between the person paying child support and the person receiving it. They are:
- The primary custodial parent leaves the child in your primary care voluntarily.
- A voluntary agreement between parents that expenses will be paid in lieu of child support; i.e., an agreement to pay a child’s expenses directly and deduct that amount from the child support you are otherwise ordered to pay.
Let’s take a closer look.
The first legitimate defense: the children are voluntarily left with you as the primary custodial parent. For example, if your ex-spouse is deployed in the military, goes off to school, runs away, or is in the hospital. Whatever the case, if your ex leaves the children with you and you become the primary parent, you may have a defense. While this does not terminate child support, legally speaking you have satisfied your support obligations if your ex tries to come after you for payments during this time.
The second legitimate defense: there is an agreement to allow you to pay a child’s expense directly and deduct that amount from the child support you otherwise owe. Whether you agree to pay the mortgage, pay for private school, buy clothes, pay sports or club fees or whatever else, it has to be voluntary between the two of you that you can take some or all of the child support you owe to pay the expenses for your children directly.
However, this defense does not work if you unilaterally simply decided to deduct the expense (even if you paid the expense); it must be an agreement. It should also be noted that any expense you pay above and beyond the child support amount owed will not give you a credit to offset future child support. So, if you agree to pick up a payment that’s $100 more a month, you can’t use that figure to offset against future child support amounts when you go back to payments as usual.
Our Advice Against Picking Up Expenses
At Shaw Law, we advise parents to not unilaterally start picking up expenses and think it will satisfy a child support obligation. The law is firm: it won’t. The only exceptions are those we’ve discussed above, and even then, we would always advise you to talk to a lawyer first as these are narrow exceptions.
Child support issues can become complicated quickly, and that can be dangerous. We always advise you to consult with a competent family law attorney first to ensure that your circumstance would qualify for an exception, as the only way to modify your child support in the State of Georgia is by a court order. If not, it could spell financial ruin and even jail in the future. And even as good a gesture as it is to pick up these additional expenses, the court will not give you credit for anything above and beyond your court-ordered obligations instead of regular child support payments. Courts are tough on child support.
If you have any questions, we’d be happy to speak with you at Shaw Law Firm. We are Atlanta, Georgia Divorce and Child Custody Lawyers and have been doing this since 1995.