Q: If my wife has 50/50 custody but only actually takes <20% custody, can I get out of paying child support?
My wife and I are legally separated, I pay her monthly for child support based on 50/50 custody, The children live with me full time and the only time my wife accepts custody is when I am out of town for work. She takes the custody in my home watching the children. In the last 6+ months that has constituted her only taking about 30 days of custody which is roughly a 85/15 split instead of 50/50. I looked at a child support calculator, and based on this split and the children living with me, it seems like not only should I not be paying child support, but she should be paying me child support. Can I petition the court to change the custody agreement based on this? And is there any way for me to get any of the child support I have paid her back?
A: Everything you have stated tells me that there is NO court order for child support, correct? If there is NO order then you would have a case in Small Claims Court to get back the difference between what you've actually paid and what the child support calculator says, but a different judge MIGHT say that what you've paid is a "gift," on behalf of your child. It's always best to go to court and let the court set a payment consistent with the Child Support Guidelines.
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