Defending false allegations of untimely support payments

Counseling clients to pay support by having their bank mail the support check can be a useful prophylactic for defending false claims of late payments.

Most of my child support and alimony-paying clients hate paying through the courts.  This hatred is completely justified.  The 5% fee associated with paying support through the South Carolina clerks of court is a significant and often unjustified “tax.”  While ostensibly designed to compensate county governments for the labor of child support collection, the fee isn’t per support check processed but on a percentage basis.  I am aware of folks paying over $3,500 per year in “fees” because they pay support through the court.  Meanwhile support payments made through the court cannot be made by personal check so it requires obligors to either obtain certified funds or come to the courthouse to pay cash.

Thus, my clients rarely want to pay support through the family court.  Instead they prefer to pay the obligee directly.  In South Carolina, when the family courts allow direct pay, they typically put in a provision authorizing the obligee to file an ex-parte affidavit and order to have support be paid through the court if the obligor is ever more than five days late.  In the past year I have handled four disputes in which my client alleges his or her support payments have been made timely while the other party claims otherwise.  Often the other party uses this claim of late payment to force support to be paid through the court.

If an obligor has routinely paid support within 5-10 days of its due date, paying through the court is not going to result in quicker delivery of support to the obligee.  The family courts rarely seek enforcement until support is weeks, even months, behind.  Further, the family courts take a few days to turn support deposits into support payments.  Forcing the obligor to pay through the court makes sense when the obligor simply isn’t paying or is routinely months late–as the family court will bring collection proceedings that won’t require the obligee to obtain an attorney.  However having support go through the court when an obligor is 5-15 days late rarely results in payments arriving quicker.

Yet, when the obligee dislikes the obligor, the obligee will often try to have support go through the court merely to impose the 5% fee on the obligor as a form of “punishment.”  This desire to punish the obligor leads to disputes over when support has been mailed and when its been received.  The easiest way to resolve these disputes is to have support paid via direct deposit into the obligee’s account but some obligees balk at allowing this (whether it’s from a desire to cause unnecessary conflict or an unwarranted fear that such direct deposits allow the obligor access to the obligee’s account is impossible to determine).  Thus, the recurring disputes as to when support was actually paid.

Last year I litigated a situation in which my client was served with an ex-parte order to pay his support through the court after his ex-wife filed an ex-parte affidavit claiming he had been more than five days late on two occasions.  He hired me to overturn the order.  This was one of those cases in which when support was mailed and received was disputed by the parties.  However, my client had done something that was then unique in my experience: he had paid his support by having his bank debit his account and mail the support checks directly to his ex-wife.  Thus he had a perfect record of when the support was mailed.  And it was routinely mailed five days before the due date (which would be ten days before it triggered the ex-parte provision).

It’s possible to prove when an obligee deposited a support check but it’s impossible for an obligor to prove when the obligee received it.  Here the ex-wife claimed she received the support late but my client, through his bank records, was able to prove that he mailed the support five days before it was due.  The court found he wasn’t late making his support payments, rescinded the order requiring him to pay support through the court, and made the ex-wife reimburse him my fees and his court costs–including the 5% fees he paid before the order was rescinded.

Now when I encounter disputes regarding the timeliness of support payments, my advice to obligors whose obligees won’t let them pay support through direct deposit is to have the bank issue the support check.  One can’t control or prove when an opposing party receives support but if one can prove support was mailed five days before it was due, I doubt any court would find the obligor was late paying support.  Having the bank mail the check completely undermines a vindictive obligee’s ability to force support through the court based on false allegations of late payment.

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