My ex-spouse is the primary custodial parent, and I am ordered to pay child support. My ex wastes child support money and/or doesn’t spend it on the needs of our children. So, I pay specific expenses of our children each month, instead of paying child support directly to my ex-spouse. Now I am being accused of failing and refusing to pay child support for several months. Can’t I claim an offset or credit for the children’s other expenses that I’ve paid?
The issue of offset or credit for money spent for the children’s benefit but that was not paid as child support expressly and directly is well-settled in Utah.
The case law is clear that expenses paid for the children cannot be credited against the obligation to pay child support to the other parent when you are court ordered to do so. The argument supporting this policy is that allowing such a credit to the child support payor would, in essence, bestow the right on him/her to modify the terms of a decree without court approval and sanction.
There are exceptions relating to Social Security (SSI) complexities (Coulon v. Coulon, 915 P.2d 1069, 1071 (Utah Ct.App. 1996)), but that rarely arises in most (normal) child support disputes. Another possible (but difficult) exception may apply if the payor is bestowing essential services for the children that the payee is failing and refusing to pay.
That stated, however, In Ross v. Ross, 592 P.2d 600, 602-603 (Utah 1979), the Utah Supreme Court applied estoppel when a child support obligor (payor) made payments that the child support payee agreed would be accepted as child support. So, this argument can prevail, if the right conditions are met; specifically:
In order to prevail on his theory of estoppel, plaintiff must prove that defendant, by her representations or actions led plaintiff to believe he need not pay alimony or child support, and that plaintiff, in reliance on said representations, changed his position to his detriment. In such a case, enforcement of the decree creates a hardship and injustice to plaintiff, and defendant would be estopped to deny her own misrepresentations, and estopped from claiming unpaid support.
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Plaintiff is not entitled, however, to credit for expenditures made on behalf of the children or defendant which do not specifically conform to the terms of the decree. To do so would permit plaintiff to vary the terms of the decree and to usurp from defendant the right to determine the manner in which the money should be spent. Only if the defendant has consented to the plaintiff’s voluntary expenditures as an alternative manner of satisfying his alimony and child support obligation, can plaintiff receive credit for such expenditures.
Utah Family Law, LC | divorceutah.com | 801-466-9277