Like so many other questions in Florida family law, the answer is that it depends on the circumstances. Usually, tangible gifts of items like toys or bikes cannot substitute for monetary child support payments, but food and clothing may. For older children, items found not to entitle the paying parent to child support credit have included a vehicle, automobile repairs and insurance, and airfare.
But, in certain circumstances, Florida judges will allow gifts – usually when the paying parent has paid money for a specific purchase or expense for the child that was in the nature of support – to reduce the amount of late child support payments due.
Often, the issue arises when the parent who receives child support claims that the payor parent has missed payments. The payor asserts that other payments they made for the child’s benefit or objects they gifted the child should be set off against any past due child support payments, reducing their liability.
In Montante v. Montante, one Florida appeals court said that voluntary payments from the payor-parent to the child directly should not be credited against child support liability “unless the payments are given in substantial compliance with a support order.” Further, gifts of jewelry and designer accessories to the child were “gifts and not support.” However, the court said that “private school tuition, prescriptions, and health insurance are necessities that may be considered as an element of support” and that only payments “directly related to providing necessities” can be set off against child support obligations.
2010 statutory amendment
The Florida legislature modified one Florida statute in 1997 to provide relevant direction to courts when they determine initial child support orders in divorce, paternity or support during marriage petitions. Specifically, the judge has discretion to order retroactive child support back to the date the parties physically separated and did not live together with their child, capped at 24 months.
In this situation, the court must consider “actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.” Courts have credited the value of some gifts to the payor’s retroactive child support due under this law if made for the benefit of the child.
Florida courts have broad discretion in interpreting what kinds of payments are “for the benefit of the child.” Specifically, payments that provide for the child’s “necessities” or their “health and well-being” are for their benefit. To get credit, the paying parent must submit credible evidence of the “nature of the gifts” to the judge, according to Department of Revenue ex rel. Soto v. Soto.
In making these kinds of decisions, Florida courts are guided by principles of equity and fairness under the circumstances of each family.
(The Soto case is available on Westlaw at 28 So.3d 171 and the Montante case at 627 So.2d 554.)
