Question

When our child support order was entered a few years ago, I was ordered to pay my ex a certain amount each month for our kid’s day care – in addition to what I pay for child support. I suspect that my ex isn’t actually spending that much on care for our children anymore – what can I do to get some of my money back?

Answer

In Washington, some child support orders have a provision which orders the parent who pays child support (referred to as the “obligor” in an order of child support) to also pay a portion of the cost of day care expenses for the children.  This is common in cases where, at the time the couple divorces, both parents work and the children are too young for school or to stay home alone.  The way that the payment is to be made varies by order; however, typically the obligor parent will be ordered to either (1) pay a certain percentage of the total day care expense, (2) pay a specific sum of money towards day care expenses, or (3) to pay a certain amount of child support, in which the cost of day care is included.

However, in most families, day care arrangements for children – as well as the cost of the care – may change over time. For example, a child might start school and need day care for only a few hours before or after school instead of all day. Or a family member may start looking after the children for free or for much less money than a professional day care charges. Or the children may stop going to day care altogether.

So what’s a parent to do when they’re ordered to pay a certain amount for day care, but the other parent isn’t actually spending all of that money on day care?  Fortunately for the parent ordered to pay for day care, reimbursement for day care expenses not actually incurred is mandatory in Washington:

If an obligor pays court or administratively ordered day care or special child rearing expenses that are not actually incurred, the obligee must reimburse the obligor for the overpayment if the overpayment amounts to at least twenty percent of the obligor’s annual day care or special child rearing expenses.

See RCW 26.19.080.

What this law means is that if you’re paying your ex $500.00 per month just for day care, but you believe your ex is actually spending only $200.00 per month on day care you can ask to be reimbursed for any money you paid that wasn’t actually spent on day care.

So how do you go about getting your reimbursement? You have two formal options for seeking reimbursement.

First, you can file a lawsuit in the Superior Court asking the court to order your ex to reimburse you. Or, you can apply for reimbursement through the Department of Social and Health Services. In either situation, your ex will be required to submit proof – in the form of receipts, canceled checks, invoices, etc – of how much he or she actually spent on day care. If it turns out that your suspicions are correct and your ex has been spending less than you pay for day care, the court will order your ex to pay you back for all the money you paid which wasn’t actually spent on day care.

Reimbursement is often accomplished by crediting or reducing the obligor parent’s monthly day care payment by a few hundred dollars per month, until the obligor parent has been sufficiently “reimbursed” for their overpayment.  In some cases, the amount of reimbursement owed will be reduced by the amount of any past-due child support.

Additionally, the timing of your request for reimbursement is very important:

• You can’t ask to be reimbursed too soon. Under Washington law, you may only request reimbursement for day care expenses paid over twelve months. So, if you’ve only been paying for day are expenses for six months and you begin to believe that you are over-paying in month seven, you have to wait another 5 months before requesting reimbursement.

• You also should not wait too long before asking for reimbursement. If you know or have good reason to believe that your ex isn’t actually spending all that money on day care but you keep paying it year after year without doing anything to get your money back, the court may find that you waived your right to reimbursement.  In a 2001 case, the Washington Court of Appeals denied a father’s request for reimbursement because he continued paying day care expenses to his ex-wife for four years, after he knew that his children were not actually in day care anymore.  The court in that case noted that it is not fair to require a parent who receives and relies on payments for day care expenses to pay back a parent who delays his request for reimbursement for an “unreasonable” period of time.  See Marriage of Barber, 106 Wn. App. 390 (2001).

The right to reimbursement for overpaid day care expenses is pretty unique – note that an obligor parent does not have a similar similar right to request a breakdown of exactly what the other parent is buying with the basic monthly support payment.  One likely reason that this special procedure  exists for day care expenses and not others is that day care costs, unlike other expenses related to raising a child, can be accounted for with relative ease and specificity.  It’s much easier for a parent to prove or disprove how much money was spent on day care than it is to prove how much money is paid towards other basic needs – which can include everything from food, clothing, and shelter to toilet paper, bicycle helmets, and school supplies.