What if my CS checks are considered "gifts"?

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What if my CS checks are considered "gifts"?

Unread postby dadsdivorce » Fri Apr 15, 2005 9:30 am

Here's a perplexing issue that I have not been able to get a good answer to, as of yet.

In May of 2003, unknown to me, a PACSES account was established by my ex-wife for child support payments. At the time, I was unemployed but continued to pay her $2,000 each month by personal check. When I began a new job in December of 2003, I received my first statement from PACSES which stated that I was $10,000 in arrears. After contacting them about the discrepancy, they informed me that my ex would have to send them a letter confirming that she had been paid. She told me that she would take care of it. Months later, with no change in the arrears balance, and another $5000 in personal checks given to her for child support, I was notified that a court date had been set for a contempt of court order in regard to an arrears balance now approaching $20,000.

The folks at domestic relations in Montgomery County informed me that I all checks paid to her would be considered as gifts, regardless if the notation on the checks specified the current month of the child support payment. I was also told that I would have to pay the total off at the hearing, or I could post a bond for the same amount until an agreement could be made. If I could not satisfy either of these options, I would be directly sentenced to 6 months in jail and my child support obligations would continue to mount. Realizing that going to jail would not be the best option for myself nor my two kids, I left the state. I have continued to pay the child support obligations, but there is a bench warrant outstanding in PA for me, and there is no way for me to see my children.

My ex refuses to notify PACSES about all my past payments and it appears that all the canceled checks that I have are worthless. It has come to my attention that I may be able to sue my ex for "abuse of process" along with "defamation of character" in the state where I reside, South Carolina. My only goal is to have these past payments applied to the arrears balance, which would bring me current. It would also serve to drop the bench warrant.
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Unread postby dadsdivorce » Fri Apr 15, 2005 9:32 am

I cannot answer your question specifically to the laws of the States that you mention, as I am not licensed in those jurisdictions. I am not familiar with a PACSES account. In my State payments of child support that are paid in excess of the monthly support obligation can be considered gifts.

Further if a court order states that payments must be made through the Family Support Center but payments are made directly, the direct payments can be considered gifts. Finally, if someone makes indirect payments for the custodial parent or child those indirect payments can be considered gifts. This would be a situation such as when the non-custodial parents brings necessities or pays child care costs (that are not ordered) and then deducts the cost from the actual child support payment.

Therefore, it is possible that the payments made directly could be gifts. However, it would be difficult to hold you in contempt in this situation. The mother received the money. Further, you were not aware of the PACSES account. Contempt charges generally require that you are aware that you are willfully violating a court order.

You need to contact an attorney in the jurisdiction that entered the bench warrant. The attorney can negotiate a surrender and bond. You can then present your case to a court. You can also discuss what authority the domestic relations services has to order you to jail. You may have received bad advice from that agency. Finally, the attorney can advise you if it would be prudent to start making payments through the PACSES. It is a concern that you continue to make direct payments to the mother instead of paying through the PACSES after you were aware of the court order.
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