Child care and child support

[jcsct5]

My ex was paying a set amount for child care expenses each month and 3 months prior to the kids stopping daycare I notified my ex and told him I would be happy to adjust the child care and child support when he was ready to do so. Anyway he told me he wasn't interested in changing things because ultimately he would be paying more due to child support being higher. (I had agreed to him paying a reduced amount do to financial circumstances that were no longer an issue.)

Move forward a year and he files for a modification and tells the judge the kids haven't been in daycare for almost a year and he wants that money back. I explained that I had notified him in advance and that he didn't want the change because his child support would have been higher. Well the judges response was that child support isn't retroactive but daycare expenses are a reimbursement of actually incurred cost and since the cost wasn't incurred he didn't have to pay. He gave my ex credit for the 10 months of day care expenses he had over paid then he raised child support to amount it should have been, but that wasn't retroactive.

Anyway we are in CA, I don't know where you are or if they would look at it the same, but I think if you could prove the kid/s aren't in daycare and the costs haven't actually been incurred then I think you win.

If you file for a modification you can just serve the ex with a demand for documents and if she fails to provide them then subpoena them from the provider.

Hope this helps.

 

[mistoffolees]

>I would think that if it was because the CP willfully
>misrepresented the costs of daycare, the CP could get into a
>whole lot of trouble (including with the IRS if fraudulantly
>claiming child care costs) with the courts.  The CP could be
>charged with perjury and/or contempt of court.
>
>I would also think (I am not an attorney) that you would get
>some type of credit for the overpayment.   I would consult
>with your attorney about this.

It's going to depend strongly on the wording.

While she clearly could be in trouble with the IRS, it's not so clear that she's violated a court order. If, for example, the order says "NCP pays CP $xxx per month for child support and $yyy per month for child care" and he continued to pay that, I don't think she's in violation even if she doesn't spend that money. It's up to her how to spend support monies.

And, in that case, there's almost no chance of collecting the overpayment. Courts do not like to retroactively change support.

It seems that the only way the court would even consider any retroactive changes is if the agreement was worded "NCP pays CP $xxx per month to cover costs at zzz Child Care agency as long as the child is enrolled there" or something almost as rigid.

[Jade]

>
>>I would think that if it was because the CP willfully
>>misrepresented the costs of daycare, the CP could get into a
>>whole lot of trouble (including with the IRS if fraudulantly
>>claiming child care costs) with the courts.  The CP could be
>>charged with perjury and/or contempt of court.
>>
>>I would also think (I am not an attorney) that you would get
>>some type of credit for the overpayment.   I would consult
>>with your attorney about this.
>
>It's going to depend strongly on the wording.
>
>While she clearly could be in trouble with the IRS, it's not
>so clear that she's violated a court order. If, for example,
>the order says "NCP pays CP $xxx per month for child support
>and $yyy per month for child care" and he continued to pay
>that, I don't think she's in violation even if she doesn't
>spend that money. It's up to her how to spend support monies.
>
>And, in that case, there's almost no chance of collecting the
>overpayment. Courts do not like to retroactively change
>support.
>
>It seems that the only way the court would even consider any
>retroactive changes is if the agreement was worded "NCP pays
>CP $xxx per month to cover costs at zzz Child Care agency as
>long as the child is enrolled there" or something almost as
>rigid.

In all of the paperwork that I had to submit to court, I had to sign everything stating that it was true under penalty of perjury.  If I had stated that I was paying child care costs and it came out that I wasn't and knew it at the time (and how does one not know what they spend their money on?), I could be penalized.  And my ex reimbursed for the child care costs portion.

Hopefully, this will be the same where the original poster lives because I think that it is wrong to be paying child care costs when there are none.  

[mistoffolees]

>>It's going to depend strongly on the wording.
>>
>>While she clearly could be in trouble with the IRS, it's not
>>so clear that she's violated a court order. If, for example,
>>the order says "NCP pays CP $xxx per month for child support
>>and $yyy per month for child care" and he continued to pay
>>that, I don't think she's in violation even if she doesn't
>>spend that money. It's up to her how to spend support
>monies.
>>
>>And, in that case, there's almost no chance of collecting
>the
>>overpayment. Courts do not like to retroactively change
>>support.
>>
>>It seems that the only way the court would even consider any
>>retroactive changes is if the agreement was worded "NCP pays
>>CP $xxx per month to cover costs at zzz Child Care agency as
>>long as the child is enrolled there" or something almost as
>>rigid.
>
>In all of the paperwork that I had to submit to court, I had
>to sign everything stating that it was true under penalty of
>perjury.  If I had stated that I was paying child care costs
>and it came out that I wasn't and knew it at the time (and how
>does one not know what they spend their money on?), I could be
>penalized.  And my ex reimbursed for the child care costs
>portion.
>
>Hopefully, this will be the same where the original poster
>lives because I think that it is wrong to be paying child care
>costs when there are none.  
>

Yes, but you're still making assumptions. See what I wrote above. If the wording is something like that, he still owes the money.

And if the child was in child care on the date she signed the agreement, she would not be lying to the court. As long as the facts were accurate on the date she signed, the fact that she changed them in the future would not make her a liar.

[jcsct5]

If, for example,
>>the order says "NCP pays CP $xxx per month for child support
>>and $yyy per month for child care" and he continued to pay
>>that, I don't think she's in violation even if she doesn't
>>spend that money. It's up to her how to spend support
>monies.

This is how my court order was worded and he successfully got it modified retroactively 10 months later even though he knew three months prior to them being taken out of child care that it was happening and I offered to modify at that time.

So I think if the original poster could prove that the child wasn't in daycare and no expenses were incurred then he could get a refund AS LONG AS the court order specifically states that money is for child care.

I think he needs to file for a modification and ask for receipts from the daycare center to prove her expenses, not a 1040 because those can easily be made up and not be the original filed.

[williaer]

Mist-
I'm afraid you're wrong here. I do agree with a lot of what you say- but this thing about no retroactive changes is just not correct. If the court sees that this person has NOT been actually paying for child care and there is a specific order for payment of child care...then the CP is wrong here. She should have notified the court and the other parent when there was a substantial change in circumstances (i.e.: NCP is paying for child care that doesn't exist).....this judge will go back and change things- the judge will likely just credit the overpayment to CS and the NCP will be ahead by that amount.

[mistoffolees]

>Mist-
>I'm afraid you're wrong here. I do agree with a lot of what
>you say- but this thing about no retroactive changes is just
>not correct. If the court sees that this person has NOT been
>actually paying for child care and there is a specific order
>for payment of child care...then the CP is wrong here. She
>should have notified the court and the other parent when there
>was a substantial change in circumstances (i.e.: NCP is paying
>for child care that doesn't exist).....this judge will go back
>and change things- the judge will likely just credit the
>overpayment to CS and the NCP will be ahead by that amount.


As I said, if the wording is very, very specific, then the court MAY find the ex in contempt and make her pay restitution. But that's very unlikely (I would be suprised if the wording is that specific). In order for that to apply, the wording would have to be something like "NCP pays CP $xxx per month AS LONG AS THE CHILD REMAINS IN CHILD CARE AND CP MUST IMMEDIATELY NOTIFY NCP IF THE CHILDREN ARE TAKEN OUT OF CHILD CARE" or something equally specific.

I was referring to the general case where circumstances have changed and the NCP asks for a reduction. It would be very, very rare for the court to order a retroactive reduction.