By Jennifer M. Paine

Divorce Lawyer, Cordell & Cordell

For many child support cases, paying child support directly to your ex-wife is a bad idea, you should not do it, and it may not be allowed under child support laws.

However, that does not make it impossible to pay child support directly. Sometimes paying directly is even a good idea.

Many divorced dads want to pay child support directly to their ex to avoid processing fees, wage garnishments and bureaucracy altogether.

So how is it possible?

By now, you have probably heard of child support "guidelines" or "formulas" or "calculators."

Since the federal enactment of the Child Support Enforcement Amendments in the early 1980s, all states receiving federal dollars to administer child support programs – currently all 50 of them - must have a uniform method for determining how much child support to pay per child.

The CSEA also established a national advisory panel on child support guidelines. The panel became a part of the federal Office of Child Support Enforcement.

With the panel's assistance, states were to establish numeric guidelines, also known as "child support formulas" to calculate child support. The guidelines were to be advisory only.

By 1988, the guidelines garnered favor, particularly because they were predictable. Therefore, Congress passed the Family Support Act. The FSA required states to make the guidelines presumptive, not advisory.

That is, the guidelines-recommended amount should be presumed the amount of child support to order, unless the payor and/or the payee establish that the amount is "unjust or inappropriate." What is “unjust or inappropriate” depends on the nature of the case and the judge.

This is one method for deviating from the guidelines. Look for circumstances in which one parent assumes an extraordinary amount of debt (maybe the entire mortgage shortfall) or has a serious health condition.

Another is the method of payment. Even if the judge requires parents to pay the recommended amount, in most states parents remain free to determine the method of payment so long as neither parent owes support to the state (for example, for the time a child was in foster care).

Direct Pay – Third Party

One method is a payment to a third party who provides "necessaries," such as food, clothing, shelter, education, childcare and other basic living expenses.

Parents most often pay third parties to maintain control over a debt that is in the parents’ names or the paying parent’s name, and which would trigger a collection action and/or a poor mark on a credit report if not timely paid.

For example, you might prefer to pay the lease for the van awarded to your ex-wife because she uses the van to take your children to and from school, hockey practice, etc., and the lease agreement is in your name. This way, you know the payment is made and you provide a necessity – transportation – for your children.

As another example, you might want to pay for your children's cell phones so that you can correspond with them at any time. Just be sure your judge treats a cell phone as a "necessary" and not an "extra."

As a final, and most common, example, you may prefer to pay the home mortgage because you are the sole mortgagee and your children will reside in the home. This is one way to deal with a mortgage in one parent's name for a home the other parent receives as a result of a settlement or a trial.

Be sure your divorce decree specifies what happens if you cannot pay the mortgage, who claims tax benefits and whether either parent can renege on the agreement or request a modification upwards or downwards.

Whatever you do, do not pay a third party without permission from the other parent and the judge in your child support order.

If you do not have this permission, then, in most states, your payment is a gift, and you will not receive credit for it. So, you could end up paying twice.

Direct Pay – Other Parent

Another method is to pay the other parent directly rather than the state.

States vary on options here, so be sure to speak with an attorney about the options available to you, but, in many states, the parent obligated to pay child support makes a monthly payment to the State Support Disbursement Unit (the "SDU" or the "IV-D agency"), which then allocates the payment between state-owed fees and child support, distributes it among the parent’s files (if the parent has more than one child owed support), then disburses it to the receiving parent.

As you can imagine, this process takes time, sometimes months, and it is ripe for human error.

Parents in a bind, for example when a child has an unanticipated school expense, usually want support now. The risk is, you could make a direct payment out of the goodness of your heart – you are a parent, after all – but not receive credit for it.

You may prefer to pay your ex directly. That is ok, so long as your child support order allows direct payments and your relationship with your ex suggests the two of you will not fight later on about whether you actually made the payment.

If you are approved to make direct payments of child support, then you will want to read my other divorce article on mistakes to avoid when paying child support directly to your ex-wife.

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.

Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.