Legal Question in Family Law in New Jersey
Child Support vs Gift
My boyfriend is paying child support for his daughter in the amount of $100 FAITHFULLY every other week. (There have been times where the child support paid out had left him with less than $100 on his paycheck) However, there is no child support order in effect. The money was going directly into the childs savings account (which ONLY the mother has access to) from his paycheck (until recently when they payroll has messed up the direct deposit) He now pays every other week with a check made out to his daughter, for deposit only to her account with the notation in the memo for Child Support. Is there a possibility that the court could decide this is a ''gift'' when he tries to get an order set? Our concern is that the payments that have been made will not be recognized as child support. Also, does he have the right to request child support and visitation to be set, or can only the mother start this?
1 Answer from Attorneys
Re: Child Support vs Gift
Your question has a couple of presumptions that are incorrect. First, by asking whether he will get "credit" you are assuming that there is an amount accruing that is being paid or needs to be paid. Not correct. Child support does not technically accrue, from a legal standpoint, until there is an official court order. If she were to file to get a child support order, it would only be retroactive to the date of the filing of the Motion.
Second, child support is not payable to the child; it is payable to the parent of primary residence for use in raising the child, including paying toward household food bills, paying toward mortgage or rent and any other household expenses. The payor has no right to designate where it goes. In this case, the mother seems to have agreed that it can go into the child's account. But that is really immaterial. The money is for the use of the mom and dad has no control over that.
Either party can file to get a Court Order for either child support or parenting time or both. That would be done in the county where the child lives.
Keep in mind that this advice is based purely on the little bit of information that you have given to me. There certainly may be other facts that would change my opinion. And, no one can rely on the opinion of an attorney who has not been retained. Before you do anything, you should consult with a Family Law attorney. I would be happy to discuss this matter with you if you would call me. Mention Law Guru and your first one hour consultation is free. Good luck! Rob Gleaner
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