SERVING CHARLESTON, SC AND SUMMERVILLE, SC IN FAMILY LAW AND DIVORCE CASES WITH COMPASSION AND CARE
This article will explore a situation that I often encounter once a Divorce or Separation has taken place and the Family Court has entered a final Child Support order. It usually goes like this. Parent A has received custody of the child and is entitled to receive $300 a month in child support from Parent B. Parent B is to pay the child support through the Family Court of the County where the final disposition of the case took place. The DSS Child Support Guidelines have already considered the cost of medical insurance for the child and that has been specifically considered and ruled on by the Judge in setting the Child Support amount.
Almost immediately, though, Parent A calls Parent B and ask for $50, which Parent A says is half of the fee needed to sign the child up for soccer. A few weeks go by, Parent A calls again, this time to ask for $100 because the child wants to go join a karate class. A few weeks go by, Parent A calls again, and again ask for $100 because its back to school and he /she needs to purchase new clothes for the child. This pattern continues on and on and on until, at some point, Parent B realizes that he / she is paying out almost double what the Court ordered child support requires. What balance should be maintained between being a good "parent" but also preventing yourself from excessive demands of the custodial parent?
WHAT ARE THE PRIORITIES?
The old saying goes "give an inch, they will take a mile . . ." and this phrase rings true in this specific circumstance. Parent B, if it is allowed to grow and fester unchecked, will inevitably run up against the economic reality of having to choose between paying Parent A the money being requested or making the child support payment. As human nature dictates for most parents, Parent B will want to give the money because that is equated in the eyes of society, and to a large extent the eyes of the law, as "being a responsible parent." At some point though money will run short, so what do you do? Who do you pay first? Who am I obligated to pay, from a legal perspective?
YOU MUST PAY THE COURT ORDERED CHILD SUPPORT FIRST!
This should not be a surprise but the explanation is not as simple as it seems. You must pay the Court ordered Child Support!! Period and end of story!! This is especially true if you are paying through the Family Court. The Family Court will have no record of the "extra money" that Parent B has sent Parent A outside of "the system." Child Support Enforcement regulations require that an account being paid through the Family Court be reviewed once a month. The system will trigger automatic enforcement of the support obligation once you hit a certain threshold of delinquency. The highest priority must be given to being in compliance to the Child Support order.
I HAVE PAID MONEY, JUST NOT THROUGH THE COURT! DOESN'T THAT COUNT?
In short . . . No! It is not a defense in South Carolina in a Rule To Show Cause for Failure to Pay Child Support to argue that you have paid money outside of the Court that in essence was to support the child. There is a steady stream of case law in South Carolina that explains that any payments made outside of the "system" are in essence voluntary undertakings by the parent and thus those payments do not serve as any offset for Court ordered payments that may have been missed. Considering the consequences that come with a failure to pay Child Support, including additional fines and possibly jail time, the highest priority must be given to paying the Court ordered support.
HOW TO AVOID THIS FROM HAPPENING?
There are two parts to the solution. First, as mentioned now five times, you have to pay the Court ordered Child Support first to remove yourself from any legal jeopardy. That has to be done without question or hesitation. That is the easy part.
Second, there must be some communication and some clarity established between yourself and the custodial parent. Maybe that involves you saying "I can't afford to keep doing this on top of the child support." Maybe it involves going back to Family Court to modify, or the very least, clarify the obligations to be paid by the non-custodial parent. I most often see this specific fact pattern occur as a consequence of a divorce or a child support litigation where the parents tried to represent themselves (Pro Se). The parents didn't make themselves available to a Family Law attorney. A good Family Law attorney would have had the ability and the experience to foresee many of the additional costs that will come to the surface as the child begins to age.
The lesson to take away from this specific question is that the answer may not be the same for everyone. One parent may be in a position to pay additional monies on top of the child support. Another parent may be financially devastated by trying to fulfill both the child support and the extra obligation.
The point of this article is to reinforce the idea that, no matter what the specific situation, the preference and priority has to go to the Child Support obligation before anything else. There is no legal requirement for making the extra payments beyond Child Support.
THE MCMILLIAN LAW FIRM REPRESENTS CLIENTS IN CHILD SUPPORT MATTERS IN CHARLESTON, SC AND SUMMERVILLE, SC
If you live in Charleston, Mt. Pleasant, Summerville, James Island, Johns Island, Goose Creek, North Charleston, Moncks Corner, Walterboro, or any of the other fine communities of the Low Country of South Carolina AND you have an issue with any Child Support or Family Law matters, please contact me at The McMillian Law Firm immediately for your free consultation! 843-900-1306 or [email protected].