A new bike, diapers or a vacation probably will not cut it as child support
Article provided by Arthur S. Kallow
More often than you might think, a father (or mother) with a child support obligation may stop paying, asserting that instead he is substituting for financial support the value of nonmonetary gifts he gave the child or expenses he paid for their child’s care. If the recipient parent objects, the court may find the paying spouse in arrears.
In other words, the father could end up paying twice – once for the voluntarily paid gratuitous gift or expense, and then for the actual money ordered to be paid. The lesson learned is that a child support payor cannot unilaterally decide to swap a gift to the child for money owed to the other parent as support for their child, unless a legal agreement or court order already allows this arrangement, which is rare.
Findings about noncash child support
Johns Hopkins University led a research study about dads who prefer in-kind gifts over cash child support. Findings included:
- Fathers with lower incomes more often prefer gifting over paying money for child support.
- Motivation for gratuitous gifts often includes a desire for closeness and bonding with their children.
- In-kind gifts often include supplies like diapers, clothing and food as well as equipment like cribs or strollers and school-related expenses.
- The level of gifting correlates with the number of visitation hours – the more visitation, the more noncash support.
- Support in-kind is more common with younger kids.
What do Illinois judges say?
Generally, when creating child support awards, Illinois courts shy away from including gratuities and gifts as valid substitutes for monetary support of children. In one case, the father’s gifts to the children could not be substitutes for providing monetary child support. “By their very nature … gratuities may be given or withheld … at any time at [father’s] unfettered discretion. Any consideration of such gratuities in setting the child support award was improper.” In re Marriage of Freesen, 275 Ill.App.3d 97, 106 (1995).
Attorney Jeffery Leving’s outlook
Chicago dads’ lawyer Jeffery Leving discusses this phenomenon in his book, “How to Be a Good Divorced Dad.” Leving discourages this gifting approach to avoid potential double payment. He explains that even if the mother accepts supplies and welcomes gifts, if she goes to court later for the money, the dad will still probably be liable for the payments. “Such an arrearage can devastate dads and cause them to become depressed and uncommunicative or even incarcerated for contempt.”
Any parent facing issues of gratuitous gifts in lieu of monetary child support should talk to an experienced family lawyer for guidance and representation.
Arthur S. Kallow is an attorney and litigation director with the Law Offices of Jeffery M. Leving, Ltd. Jeffery M. Leving is founder and president, and co-authored the first real Illinois joint custody law and other laws. In addition to “How to Be a Good Divorced Dad,” he is the author of “Fathers’ Rights” and “Divorce Wars.” To learn more about Jeffery M. Leving and his latest court victories, follow him on Twitter and Facebook, and view his videos on YouTube.