It is not unusual for parents of a married adult to give money to the son or daughter or to the couple to help with expenses or for a specific purpose like a down payment on a home or a vacation. Or a grandparent, other relative or friend might do the same.
But when a couple with minor kids divorces, or unmarried or separated parents find themselves in court about child support, do those gifts count as income in the calculation of proper child support?
Regular or occasional gifts
The answer is not usually, but in very specific circumstances, yes. Florida courts have been clear about this question. Specifically, it turns on whether the gifts are regular and not sporadic, and whether the person giving the gift intends to continue it into the future on a regular basis.
Florida has a complicated statute that directs how courts calculate child support. The process starts with establishing each party’s income level to accurately determine who can pay child support, who needs support and the fair and adequate amount. Some types of income are obvious like salaries and wages, but others are not traditionally considered income (such as for taxation) but may be for purposes of “income” available for child support.
The question of whether a spouse’s parents’ gifts are income for this purpose (or monetary gifts from anyone) turns on the child support law that says one type of income to include is “payments, made from any person.” Another relevant provision is that the judge may impute income when someone “[r]eimburse[s] expenses or [makes] in kind payments to the extent that they reduce living expenses.”
Examples of income masquerading as gifts
Judges do not view one-time gifts or occasional gifts as income available for child support. Child support is normally an ongoing, regularly scheduled payment of money from one spouse to the other to help support children. Logically, an income source used for child support payments must be something the payor can regularly rely on. It would be unfair to recognize an inconsistent resource as income.
An attorney can gather and present to the court evidence of whether monetary gifts are regular and ongoing, whether the lawyer represents the potential paying ex-spouse or the future recipient. Examples of how courts have ruled on this issue:
- A dozen years of $6500 monthly payments from the husband’s parents to the couple that continued even after they separated were appropriately income. The mother said in court that they would continue payments after the divorce to both parties.
- Where a wife’s family had helped her with the mortgage and other bills, there was not enough evidence to conclude that this help would continue, so those gifts were not be income for child support purposes.
- Income cannot be imputed from a new spouse who helps his spouse (the remarried ex-wife) with living expenses.
- Where a spouse’s parent allowed the husband to live rent-free in property owned by the parent, $1,400 of the monthly rental value of the home would be income attributed to the husband since it provided in-kind living expense assistance. The parents said they would continue to provide or pay for his housing expenses. However, sporadic money gifts they had paid to him should not be counted as income as there is no guaranty they would continue.
Imputing income from a gift can also be an issue with questions of alimony. While they two types of support are computed differently, they both require correct calculation of the income available to both parties.