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Can spousal and child support be changed to being a gift from

my ex-husband if he agrees...
Can spousal and child support be changed to being a gift from my ex-husband if he agrees to the change?
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Answered in 2 minutes by:
8/26/2013
Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified

Brandon M. :

Hello there.

Brandon M. :

Hi, I see that you joined the chat. Welcome.

Brandon M. :

Are you able to see this and respond?

Customer:

yes

Brandon M. :

Great. Thank you for your question.

Brandon M. :

Does your ex-husband owe any arrears on either the spousal support or the child support?

Brandon M. :

In other words, is he past-due on either?

Customer:

no

Brandon M. :

Are you receiving any sort of public assistance at this time?

Customer:

no

Brandon M. :

Are you contemplating this gift to be a lump sum, or to be paid on a monthly basis?

Customer:

monthly

Brandon M. :

Well, as long as both parties are in agreement, as long as the recipient party is not receiving public assistance, there would ordinarily be no reason that the parties couldn't agree to set spousal support and child support at $0 per month, and for the payor spouse to transfer the money as a gift on a monthly basis. I would just warn you that an agreement to give a gift would generally not be enforceable. The payor should also be aware that transferring the money as a gift instead of as support could have adverse tax consequences. But as to whether it is legally possible, the answer is "yes".

Brandon M. :

Does that make sense?

Customer:

He is on disability and is not taxed for his income and because he is not taxed, I am not taxed on spousal support or child support. could there be an agreement written up that if he stops sending the money, than it would go back to original agreement?

Brandon M. :

Well, that would be difficult. If you have an agreement saying that if he stops sending the money then it would go back to the original agreement, that's basically the same thing as spousal support and child support. You can call it a "gift" under those circumstances, but it probably wouldn't really be a gift in the eyes of the court or the IRS.

Brandon M. :

Is there a particular reason that you want to do it this way? What are you hoping to accomplish?

Customer:

I am trying to get financial assistance for a private school in Santa Barbara and need to fill out a financial aide application.

Brandon M. :

I see.

Brandon M. :

Well, I have a suggestion, if I may:

Customer:

The school really wants my son to attend their school as he is an excellent student and an exceptional athlete and they are encouraging we do what we can to make it happen. 1. Having just me fill out the application

Customer:

I am open to any advise!

Brandon M. :

If he's cooperating, you could ask for the gifts to be one month in advance. That way, if he misses a payment, you could go back to court to reinstate the child support and spousal support before you actually run out of funds (incidentally, child support and spousal support is called "family support" when together). He would technically not be under the court's order to pay anything to you during that time period, but you would have that advanced notice if he was going to stop payment.

Brandon M. :

If I was his attorney, I would likely advise him to not do that for several reasons, but if you each trust each other then it could work.

Customer:

The school is willing to make it happen for my younger two children as well if John attends their school. Approximately 15,000 a year per student for all 4 years

Brandon M. :

However, since you don't trust him to keep the payments flowing, I'm guessing that he doesn't trust you to not turn around and ask for court-ordered support again immediately. I may be misreading the dynamic, though.

Brandon M. :

Does that make sense?

Customer:

Is there anything that could be offered to him in writing, etc.. that would give him assurance or some way to guarantee him that the gift would be repaid if any action was taken? I have no intention of ever asking for a court order again. I just want my kids to get the best education and opportunities possible. What if I gave him the full amount i would be receiving from him for the year and it could be held in a joint account that would require both signatures and someone in charge of it

Brandon M. :

I wish that there was, but the law won't let you have it both ways. If he is bound to the gift--if the gift is enforceable-- it is not considered a gift. It is a legal obligation. If it is a legal obligation, it is either child support and/or spousal support, or it is a debt. If it is a debt, then it wouldn't prevent you from turning around the very next day and filing for child support as well as enforcing your debt.

Brandon M. :

If it isn't a legal obligation, then he could simply stop payments and you would have to go back to court to get support reinstated.

Brandon M. :

So, you either have to trust him to keep making the gifts to you, or he has to trust you that you won't turn around and seek support even though you have received the gifts, or you have to let the money flow through a legally enforceable mechanism, i.e. a court order.

Customer:

Do you know with financial aide applications for High schools if they ask for bank statements? My taxes would indicate no income but my bank statement would show the deposits

Brandon M. :

Private schools are generally under no obligation to require a parent seeking financial support to produce a bank statement, but they're a private entity, which means that they have a lot of latitude with what sort of verification they can require from the parents. If they provide financial aid based on a parent's resources, asking for bank statements is at the school's discretion.

Brandon M. :

I realize that this is probably not the news you hoped to hear, but please remember that I have to be straightforward if I am to be of any help.

Brandon M. :

Did you have any other question?

Customer:

No, but I am glad to have my eyes opened to possible problems that could arise for me and the kids if I did allow it to be a gift.

Brandon M. :

That's sometimes the best that I can do, unfortunately. I'm just glad that you're savvy enough to be asking these questions now, instead of making the decision and asking them later.

Customer:

One more question, I have about 250,000 in a brokerage account and a IRA worth about the same. Can I transfer the brokerage account to a family member without major penalties? I trust my brother very much and he has always done my investing for me.

Brandon M. :

Do you mean transfer control, or transfer ownership?

Customer:

ownership until kids get thru college

Brandon M. :

If you're talking about transferring ownership, you would typically expect to incur significant penalties. Because the nuances of every case are different, this information should not be construed as complete or advice without consulting in person with legal counsel, but that said, the typical person is not likely to escape "major penalties" under the scenario that you described. Even though your brother is trustworthy, I strongly recommend meeting in person with counsel to discuss in detail the certain and potential consequences if you are contemplating transferring that much wealth.

Customer:

ok thx

Brandon M. :

Things you may have not considered include questions like, what happens if he dies? What happens if he's sued? Will you be subject to a gift tax? There are a lot of factors.

Customer:

okay

Brandon M. :

It was my pleasure. Let me know if further clarification is needed, and please feel free to leave a positive rating once you are completely finished (I work for ratings). Thanks.

Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
Experience: Attorney experienced in all aspects of family law
Verified
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Brandon M.
Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12,620
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Experience: Attorney experienced in all aspects of family law

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