Can a mortgage payment be considered child support?

Question:

I have been paying the mortgage payment on the marital home since we separated even though I was the one who moved out of the house. Since there is no order yet for child support, would the $521/month payment be considered child support since I’m helping keep a roof over my family’s head?

Answer:

 

Possibly. In most states, mortgage payments made to maintain the children’s home during separation or after divorce are considered “third party payments” of support rather than “direct payments,” i.e. payments made to a third party for goods or services the children receive rather than to the children’s custodian directly (or through the support administrator for relaying to her). In a final support order, you should make sure the amount you pay and the credit you receive against any child support obligation are stated with specificity, lest a court later treat the mortgage payments as payments for a property settlement or spousal support rather than child support. Things are muddy when you do not have a support order. Your court may treat the payments as evidence of the amount of support you can pay, as payments to maintain your property during the divorce process, or as spousal support payments, rather than child support payments. Therefore, the court may not treat the full amount you pay as child support.
To ensure that you receive the maximum amount of available credit against your child support obligation, be sure to: keep records of each payment made, from what source (e.g., checking account) and when; advise your spouse that you are making the payments for your children’s benefit as support, preferably in writing; negotiate a settlement with your spouse to treat the payments as support; document your spouse’s ability to provide for her own needs (so the payments are not treated as spousal support); and consider filing a motion to declare the payments as credit toward your child support obligation. A Missouri attorney will be able to advise you of the best option.

Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Missouri You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation. Cordell & Cordell, P.C. does have offices in Missouri.

 

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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One comment on “Can a mortgage payment be considered child support?

    My wife moved out of the family home on June 28, 2015. We live in Alabama; I have been making the mortgage payments for 8 months. The mortgage is in her name only, but both of our names are on the deed. I have had my 17 month old daughter on my insurance since she was born. I began paying $605.00 child support, along with the insurance, mortgage payments, utilities, food, and gasoline for my vehicle. Last month my truck broke down, the total costs of repairs are about $1600. I could only get $600 worth of work done to it, because of my limited funds. Also after paying the last 6 months of 2015 mortgage payments alone; my wife files a fraudulent tax return and claims all of the mortgage interest, because it’s in her name. I need to file my taxes by April 15, and I can no longer afford the mortgage payments. Is there something that I can file with the court? I am not trying to ruin my wife’s credit I just have an over abundance of debt.

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