Child support waiver/affidavit

[Jim-K]

What is the name of your state (only U.S. law)? I'm in Texas.

When my ex and I divorced, we decided that instead of paying cash for child support, that I would pay for the mortgage on the house. We never officially told anyone and the AG never contacted me about not paying child support through their office. There was never any problem, I made all of the mortgage payments on time, the AG (I'm guessing) never got the necessary paperwork, and so I never had to arrange this with their office.

Fast forward to this past Monday. I went to visit a lawyer about some other matters regarding the decree and she asked me why the AG never sent me notice about not paying child support. I told her the whole story and she said that I should write up an affidavit that says that the entire time I had been paying child support and that it was mutually agreed upon and all of that.

My only question is: what sort of specific language do I need in this document to cover my bases? My ex will gladly sign, there's no animosity... This is just a protective measure for me. I tried searching for a form or template on the AG's site, but I don't speak Latin so I have no idea whether there's anything there or not.

Thanks in advance!

 

[Zigner]

What is the name of your state (only U.S. law)? I'm in Texas.

When my ex and I divorced, we decided that instead of paying cash for child support, that I would pay for the mortgage on the house. We never officially told anyone and the AG never contacted me about not paying child support through their office. There was never any problem, I made all of the mortgage payments on time, the AG (I'm guessing) never got the necessary paperwork, and so I never had to arrange this with their office.

Fast forward to this past Monday. I went to visit a lawyer about some other matters regarding the decree and she asked me why the AG never sent me notice about not paying child support. I told her the whole story and she said that I should write up an affidavit that says that the entire time I had been paying child support and that it was mutually agreed upon and all of that.

My only question is: what sort of specific language do I need in this document to cover my bases? My ex will gladly sign, there's no animosity... This is just a protective measure for me. I tried searching for a form or template on the AG's site, but I don't speak Latin so I have no idea whether there's anything there or not.

Thanks in advance!

This would be a GREAT thing for your attorney to deal with.

ETA: The biggest problem I see with your plan is that you really haven't been paying child support. Was child support ordered in your decree?

 

[HRZ]

I agree...would be a lot smarter to have your lawyer draft the affadavit cnfirmng money paid ...this is one place. NOT to write to much....there may be other cans of worms f you open a can of them....hopefully your ex or children were not collecting some public sector benefits under color of not getting child support. ....don't turn over any rocks looking .

In an economic sense if you owed $750 a month in CS and you paid $750 a month and EX directly or indirectly had it go to mortgage ..it is an economic wash ...but I suspect that's not quite the whole story .

 

[LdiJ]

This would be a GREAT thing for your attorney to deal with.

ETA: The biggest problem I see with your plan is that you really haven't been paying child support. Was child support ordered in your decree?

If his wife was awarded the house in the divorce decree then maybe it would be legit to consider that to be child support. After all, the mortgage was something that she would have had to pay with her income. However if they both still own the house or there was some language that the home would be sold and the proceeds split at some point in time...perhaps after the children were legal adults, then I would agree with you that he was not paying child support.

 

[justalayman]

Was there child support ordered either in the decree or by a later action?

Are both your and wife’s name on the mortgage? If yes and you also answered yes to #1, did the payments equal at least twice the ordered support obligation?

Is your wife willing to state you she accepted the mortgage payments as your child support obligation?

 

[Jim-K]

Was there child support ordered either in the decree or by a later action?

Are both your and wife’s name on the mortgage? If yes and you also answered yes to #1, did the payments equal at least twice the ordered support obligation?

Is your wife willing to state you she accepted the mortgage payments as your child support obligation?

I'll answer these in order:

1. Yes. Child support was ordered in the decress.

2. Only my name was on the mortgage. I paid the full mortgage payment every month, which was actually a little more than the amount of child support specified in the decree. (Decree said ~$900, I paid ~$1,100)

3. Yes, she is. This is whole exercise is more for my protection.

Also, it should be noted that she was supposed to assume the mortgage after a few months of the decree being finalized, but she didn't. Mostly because she didn't think she had the credit to assume any sort of loan. And she and my son lived in the house the whole time.

 

[justalayman]

I suspect it would not be seen as paid in lieu of child support as the payment of the mortgage benefits you since you were the only debtor on the mortgage loan. Payments you made on the mortgage paid down your debt and directly paid your financial obligation.

But unless your ex or child recieves state aid and your ex doesn’t have an issue with the arrangement I don’t see who would complain about the situation. If nobody complains I don’t see why the state should bother with this.

 

[Jim-K]

I suspect it would not be seen as paid in lieu of child support as the payment of the mortgage benefits you since you were the only debtor on the mortgage loan. Payments you made on the mortgage paid down your debt and directly paid your financial obligation.

But unless your ex or child recieves state aid and your ex doesn’t have an issue with the arrangement I don’t see who would complain about the situation. If nobody complains I don’t see why the state should bother with this.

She's getting the equity from house, which she's using as collateral for her new mortgage. I get a small amount, which is half the equity from the house earned while we were still married. Basically, she's "buying" a house for roughly a quarter of its value.

So now I just need to know the language to put in this affidavit. Something that says we agreed upon a direct payment of the mortgage (which allowed for her to live there rent free, in essence) and that that commitment was met from the time of the decree being finalized until my son's graduation from high school.

 

[HRZ]

I'm a fan of the less detail you write the better ...and in this example the key point is you paid and she received A sum equal to,or greater than the amount in order for the period. x to y .

BTW I think your economic logic will is flawed ...as posted, you remained liable for the mortgage as she failed to refinance ..and as posted you get zero credit for same! Were you still on deed?

 

[Zigner]

I'm seeing this as payments for a property settlement being mischaracterized as child support, and that may have tax implications.

 

[Jim-K]

I'm a fan of the less detail you write the better ...and in this example the key point is you paid and she received A sum equal to,or greater than the amount in order for the period. x to y .

BTW I think your economic logic will is flawed ...as posted, you remained liable for the mortgage as she failed to refinance ..and as posted you get zero credit for same! Were you still on deed?

I was still on deed. And it wouldn't be the first time my economic logic is flawed. Story of my life.

But for the affidavit, I'm thinking something as simple as: "This document is to confirm that, in lieu of child support payments made through the Attorney General's office, I, [insert name], paid child support to [insert ex's name] in the form of mortgage payments. Signed this day in the year of our Lord and etcetera and so on..."

 

[justalayman]

I don’t understand what the need or even benefit of the op signing an affidavit stating what the intent was. It is meaningless since being the obliged, the state doesn’t care what he claims to have done. What matters is whether the ex is in agreement with the claimed action. If sued for delinquent support, an affidavit by the op might as well be a blank sheet of paper.

 

[Jim-K]

I don’t understand what the need or even benefit of the op signing an affidavit stating what the intent was. It is meaningless since being the obliged, the state doesn’t care what he claims to have done. What matters is whether the ex is in agreement with the claimed action. If sued for delinquent support, an affidavit by the op might as well be a blank sheet of paper.

Yes. And she has agreed to sign it. We've spent the last 10 years in this arrangement. I've never missed a payment. I'm just looking for a way to protect myself in the event that the AG ever questions why I haven't paid child support through their office.

 

[LdiJ]

I'm a fan of the less detail you write the better ...and in this example the key point is you paid and she received A sum equal to,or greater than the amount in order for the period. x to y .

BTW I think your economic logic will is flawed ...as posted, you remained liable for the mortgage as she failed to refinance ..and as posted you get zero credit for same! Were you still on deed?

Your logic is flawed. If he got "credit" for paying the mortgage and therefore got a bigger equity payout, then he would not be considered to have paid child support. Its only child support because she is keeping the equity. He could have given her the money and then she could have paid the mortgage with the child support. They chose to do it differently than that, and that is ok since it obviously worked out for them, but if she didn't get the equity from that it would not be child support, it would be him paying his own debt and then benefitting from that.

 

[Jim-K]

Your logic is flawed. If he got "credit" for paying the mortgage and therefore got a bigger equity payout, then he would not be considered to have paid child support. Its only child support because she is keeping the equity. He could have given her the money and then she could have paid the mortgage with the child support. They chose to do it differently than that, and that is ok since it obviously worked out for them, but if she didn't get the equity from that it would not be child support, it would be him paying his own debt and then benefitting from that.

Which I will not. She's getting the equity from the house. And the house.