Question:
I have a case in family court where I’ve been given temporary custody due to a TOP as of late December. Our daughter has no intentions of going back to my ex due to physical abuse, but I know it’s a process to switch child support. In fact, I now have a date for support court in late March. Do I have to keep paying my ex child support until late March? If I do, can I then get it back as well as back child support for those months?
Download Our Free Divorce Guide
Answer:
As an experienced Saratoga Child Support Lawyer I frequently am asked a similar question. Technically, you do need to continue paying child support to your ex, if you are paying pursuant to a court Order (if there is no court Order or agreement, then you can stop paying). If you have not already done so, you should file a Petition to Modify Support with the Family Court ASAP, and attach any TOP or relevant custody Order showing that the child lives with you. It sounds like you may have already done this. If so, you should also consider filing an Order to Show Cause seeking to suspend your support payments (or to have them held in escrow) pending the first appearance on your petition, on the basis that you have custody of the child (attach any orders showing that). As a Saratoga Child Support Lawyer, I advise my clients that this is important; while the court can modify support retroactively, as a matter of public policy the court cannot order your ex to repay to you what you have paid to her prior to the existing Order of Support being modified. She will owe you retroactively from the date you file, but the amount she owes to you may not be equal to the amount you pay her, depending on your respective incomes.
You should consult with an experienced Saratoga Child Support Lawyer. In some instances, it might be advisable to withhold payments, or to perhaps create a separate account, and make payments into that account until you go back to court (in essence creating your own escrow account), so that the money is all there and accounted for, but not yet paid to your ex, prior to your first appearance in support court.
Has your child moved back into your custody, and you are still paying child support? Contact our experienced Saratoga Child Support Lawyers in Clifton Park.
This legal question was provided by a Avvo and answered by Jennifer Sunderlin Morton an experienced Saratoga Child Support Lawyer. This does not consent an attorney client relationship.
Download Our Free Divorce Guide
