Tag: expenses

Does a Parent Have to Account for How Child Support Payments are Spent?

Does a Parent Have to Account for How Child Support Payments are Spent?

The short answer is “no.”  (Who says lawyers don’t give clear answers?)

One of the biggest complaints we hear is that “the other parent is not spending my child support payments on our child.”  This can be particularly frustrating when the child support payment is significant and/or when the payor disagrees with the recipient’s spending habits.  For example, I had one client call and was very upset that his child’s mother had sent him an email saying she was using his child support payment to cover the cost of her new SUV.

Child support can be used for anything and there are few, if any, rules on how it is to be spent.  Kentucky’s child support guidelines, as were most other states’, were established in response to the mandate of the Family Support Act of 1988 passed by the federal government.  That act is similarly silent as to how child support is to be spent.  Child support is intended to pay for the child’s basic needs including housing, food, and clothing.  In addition to these basic needs, it may also be used for school activities, extracurriculars, and transportation costs, which would include the new SUV I mentioned in the earlier case.

The parent who receives the child support has broad discretion in how the money is spent.  Although it can be frustrating to the person paying the support, the payor has no real say in how it is used as long as the child is being cared for appropriately.

Occasionally, parties will enter into an agreement to “split expenses” for the child instead of paying child support.  These agreements almost never work out.  It seems invariably that the parties end up disputing what a legitimate expenses or what they agreed to “split.”  This will usually wind up in additional litigation and legal fees while a judge is forced to review receipts for these expenses.  Judge despise being forced into a situation where they are required to review receipts.  When these types of agreements come back before the court, the court will most likely do away with the agreement and order guideline support be paid instead.

Similarly, Kentucky courts will not review or require an accounting of how guideline child support is spent by the recipient.  The best way to ensure the child support is being used to properly care for the child is to maintain a close relationship with the child.

Photo courtesy of ben_osteen

Who Has to Pay Attorney Fees in a Divorce?

Who Has to Pay Attorney Fees in a Divorce?

Divorce cases are expensive; no doubt about it.  Johnny Carson is often credited with making the joke that they are so expensive because they are worth it.  Nevertheless, cost is a question that almost always comes up in a new divorce case.  Along with that is whether the other party can be forced to pay one’s attorney fees.

The concept of the opposing party having to pay the other side’s attorney fees is more prevalent in other areas of civil practice.  It also often comes out of the notion that the “loser pays.”  That actually is how the system tends to work in many European countries, but is not a doctrine that has been adopted in the United States save for certain very limited types of cases.  The reason being that it would tend to discourage people from bringing valid legal claims to court.

Moreover, the idea that there is a “winner” and a “loser” in a divorce case is a misconception.  There really are no winners.  The court is trying to make an equitable decision and solve difficult problems in the most just way possible or in the best interest of the child.

With all that being said, it would be wrong to get the idea that attorney fees are never awarded in a divorce case.  They are.  Kentucky Statute allows for attorney fees and costs of an action to be awarded “from time to time.”  However, going into a case, you would be wise to make sure that you have funds available with which to support your litigation.  Otherwise, you may be forced to sell your case short and accept a settlement that is far less than it should be simply because you cannot pay for certain expert witnesses, your attorney, or otherwise support yourself.  The reason I say this is because, even though the statute allows the court to order the other party to advance attorney fees and costs to the more indigent spouse, many judges refuse to do so and, instead, wait until the end of the litigation to order attorney fees.  That does not mean that a motion for advancement of fees should not be made especially in situations of wide income disparity.  Just be forewarned that it might not pan out.

When courts do award attorney fees whether during the pendency of the action or at the end, the case usually falls into three categories:

  • As alluded to earlier, where there is a wide income disparity between the parties, the court is more likely to look favorably upon a request for an award of attorney fees.  Sometimes, this is referred to as “leveling the playing field.”  For example, where you have a wealthy physician on one side and a stay-at-home mother with limited income potential or earning capacity on the other, it is more likely that the court will award the wife her attorney fees and costs.  Keep in mind the court will temper this decision based on how the property is ultimately awarded and what, if any, maintenance is awarded.
  • To reimburse one party for fees incurred to litigate a case that should never have been tried in the first place.  This would be a situation where the law is fairly clear and the case should have been settled outside of court, but one party is simply too stubborn or unreasonable.  If you hire a skilled family law attorney, he/she is better able to prevent you from finding yourself in this situation.
  • The final reason would be to discourage misconduct by the parties during litigation.  Many times during a case one party is particularly unwilling to cooperate or obey court orders.  This results in the other party having to come before the judge to seek sanctions to force the recalcitrant party to do what he/she was supposed to do in the first place.  As a sanction the court might force the misbehaving party to pay attorney fees to the other side.

Once the court decides to award attorney fees, the judge has to then decide how much to award.  The court may require the attorney seeking the award to submit an affidavit setting out his/her fees and how the figure was reached.  The court will then evaluate the fee charged/requested in light of the complexity of the case, the reasonableness of the charges, and any other relevant equities of the case. Once awarded, the attorney fees are enforceable as any other money judgment and may be garnished from the obligee’s wages and assets.

Photo courtesy of Tax Credits