No Credit for Nonconforming Child Support Payments

Case Study

     We counsel clients to avoid cash and venmo to pay their child support payments. We also advise our clients to avoid informal, non-binding informal modifications of child support. In Le v. Le, the father and mother had one child from their marriage before filing for divorce. Their marital settlement agreement gave the mother primary custody of the child and required child support payments from the father. For over two years, mother agreed to allow the child to live with the father on a temporary basis, after which the child returned to the custody of the mother. The mother later sued the father for not paying child support over the period the child lived with him. The father claimed that, although he did not pay child support directly to the mother during this time, primarily taking care of the child for this extended period counted as a nonconforming child support payment anyways.

Analysis

     The court ruled against the father, explaining that the father was not. allowed to stop paying child support absent the mother’s consent to do so. In Virginia, there are two requirements that must be met for nonconforming child support payments to be valid: (1) There must be a memorialized (written) agreement by the parties (that is then entered as a court order) that modifies the terms of the support payments or the method in which the payments are paid; and (2) There must be no adverse effect on the support award itself (absent a new order that allows it). Here, the court found that the father satisfied the second requirement of nonconforming child support payments but did not satisfy the first. There was no written agreement or court order between the father and mother that allowed the father to meet his child support obligations through allowing the child to live with him for the two-year period. Because there was no written agreement or court order, it was as if the father had paid nothing towards his child support obligation the entire time the child lived with him.

Conclusion

     It is important to remember that making “side deals” for child support payments is never a good idea if it is not done in writing and then entered as a court order in Virginia. It is also just as important to never pay a child support obligation in cash or through a payment method that cannot be tracked, accounted for, and easily proven in a court of law.

     If you would like assistance navigating spousal or child support agreements, please call one of our offices at 804-325-1245 (Richmond) or 757-941-4298 (Williamsburg) to discuss your options.

Special Thanks to Brayden Meadows for his assistance with this article.