Legal Question in Family Law in California

Can child support be "pre-paid"? My ex husband paid me more than the court ordered amount for approximately 3 years based on the fact that he was doing extremely financially well with his business. I have a special needs child and was only able to work part time (at that time, but I am now working full time) so had limited income. I also have 90% custody so the majority of the burden is on me. His business has now slowed down and he stopped paying child support all together. I filed a case with DCSS and in response he is claiming that he is due a credit of $47000 based on the fact of overpayment for years 2006-2008. That was never the agreement. There is nothing in writing either way. Does he have any case for a credit due him?

Asked on 11/12/10, 9:37 am

2 Answers from Attorneys

Lyle Johnson Bedi and Johnson Attorneys at Law

Child support can be paid in advance. It has been several years since I researched this issue, but at that time credit for advance payments was allowed only when the payee parent is given notice that the payments are being made in advance. The court considered the excess payments to be extra assistance from the payor parent to the payee parent. The court is authorized by law to determine the amount of pay back for over payment of child support. However, in this case you should argue that the payment was not an over payment but his generous additional support for our child. I do not recall the case I referred to above. I should be able to find that case or a newer case if you need it. With $47,000 at stake you should consider retaining an attorney to represent your. The department of child support services should assist you, but don't count on their helping you rather than him.

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Answered on 11/17/10, 10:29 am

Betty Freeman Law Offices of Betty w. Freeman

I would recommend that you contact Child Support Services to enforce the current order which he is now not paying. DCSS is the best approach to get a current payment stream from your ex. They may need to modify the current amount due based on changes in each of your income levels, but at least they will get him current. They should be able to argue that the additional $47000 was a gift based on his ability to pay. It is his burden to show that the $47000 was an advance, not a gift.

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Answered on 11/18/10, 2:57 pm

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