Debunking the myth that you cannot deduct non-court ordered child support payments when obtaining a court order for child support for another child.
How to Get the Court to Deduct Non-Court Payments of Child Support
In California, parties to a child support case can obtain a deduction for child support, whether that child support is ordered or not. While it is easier to obtain the child support deduction for paying child support on a Court order since the party paying child support to another child can show the Order and the proof of payments, Judges, DCSS attorneys, and often private counsel are clueless that a parent can deduct child support without a Court order. There are many parents who have children, ended their relationship with the father or mother of the child, and pay child support without an Order of the Court. Sometimes those parents have other children with other parents who ask for Court orders on child support. In those situations, the Court must also consider the payments of support made on a voluntary basis so that the child support accurately reflects that the parent is paying support to another child. This has impact on the guideline calculation, and provides the parent paying support on an Order a reduction in child support since there are other children that the parent is supporting. The public policy of child support in California is that parents are obligated to support their children.
Family Code Section 4059 (e) provides parents who support their children the ability to deduct the child support they give to another parent without Court order. There are limitations. First. the Court cannot deduct above what would be the guideline. This is because payments above guideline may be deemed gifts of a personal nature to the other parent rather than actual support. Second, there needs proof of payment. You cannot pay cash. Payments should be made by check, money order, cashier's check or direct deposit with the magical words child support. Furthermore, you should provide banking records showing the support was actually paid. Without documentation evidencing the child support payments, the Court will not deduct the non-court ordered child support. Even with this proof, you will likely encounter opposition, as it is my experience that most attorneys and Judges are not familiar with this code section. Also, it is wise to demonstrate payments over a period of time before attempting to argue the deduction (minimum 6 months). This demonstrates that the payments are sincere and not an attempt to deceive the Court.
FC CODE 4059 (e)
(e) Any child or spousal support actually being paid by the parent pursuant to a court order, to or for the benefit of any person who is not a subject of the order to be established by the court. In the absence of a court order, any child support actually being paid, not to exceed the amount established by the guideline, for natural or adopted children of the parent not residing in that parent's home, who are not the subject of the order to be established by the court, and of whom the parent has a duty of support. Unless the parent proves payment of the support, no deduction shall be allowed under this subdivision.
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