Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney here to assist you.
If she's the custodial mother, she has a right to collect child support every month. She should use the money to pay for their care during those months. If you believe that she's squandering the money or using it improperly, you can file a motion to modify the child support order and get the judge to order a reduced payment or cecession of payment during these months. If your husband is going to stop paying, he better have a court order in his favor or he's going to be in trouble with the court.
No, your income is no factor in determining child support because you have no legal obligation to care for or support the child.
If there's no court order, he could be in for a real disaster because any money he's paid over doesn't count toward his legal child support obligation. Only money paid through child services is credited. Thus, if the mother claims that he's never paid a cent in child support (even though he's paid her money), he would have to prove he had - which can sometimes be very hard.
If he pushes her on not paying during these months, he may be opening a very big can of worms for being exposed to pay back child support and support going forward.
If he wants to go to court, I would recommend that he get something in writing that says she agrees he's paid her child support over the years - and what amount he's paid.
Whether this is good enough depends on what the mother claims. If she claims that this money was not for child support, he's going to have an uphill battle - this is especially true for the cash payments because he has absolutely no proof that he paid her anything. So, you advice to him to write checks was certainly a good recommendation.
If each check each month is the same, I think he can put up a good claim that this was intended as child support.
If she sought to pursue such a claim, it would be from the date of the divorce - not the date of separation.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).