CAN YOU COMPROMISE CHILD SUPPORT ARREARAGES?

Donald F. Conviser, Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills, California, serving divorce and family law clients in the Courts of Los Angeles County and Ventura County for over 35 years, offering a free confidential consultation (call 818/880-8990) regarding your divorce or family law issue, provides insight regarding whether or not a payor can effect a private compromise of child support arrearages as opposed to a compromise through CSSD or any other local child support agency.

California Family Code Section 3651(c)(1) provides in relevant part that a support order may not be modified as to an amount accrued before the filing of a Motion or Order to Show Cause for modification. So going to Court to seek a retroactive modification would not work to compromise child support arrearages.

However, where justification exists, courts have refused enforcement of child support obligations. Marriage of JACKSON (1975) 51 Cal.App.3d 363 and in Marriage of TRAINOTTI (1989) 213 Cal.App.3d 1072, were cases in which the supporting party (the father) received actual physical minor child, albeit without an order changing custody. In those cases, the appellate courts acknowledged that an order for child support may not be retroactively modified, but held that the trial court had the discretion to deny enforcement of child support orders on equitable grounds - because the father was actually supporting the child, and in so doing, he was satisfying or discharging his support obligation.

The appellate court in Marriage of GRAHAM (1959) 174 Cal.App.2nd 678 held that a party can waive her right to a portion of spousal support and child support. Marriage of PABOOJIAN (1987) 189 Cal.App.3d 1434 was a case where the ex husband told his ex-wife that he had serious financial trouble, and the ex-wife told him to take care of the children and forget the alimony. The appellate court in PABOOJIAN affirmed the trial court's ruling that the ex-wife waived spousal support.

In Marriage of HAMER (2000) 81 Cal.App.4th 712, the appellate court found no evidence of an express oral agreement to accept less than the amounts required by the judgment and to forego collection of the difference, but commented in dicta about changes in the law, that child support was enforceable until paid in full, that child support was not retroactively modifiable, and that lack of diligence can no longer be asserted as a defense.

In Marriage of SABINE & TOSHIO M. (2007) 153 Cal.App.4th 1203, the appellate court disapproved Toshio's compromise with Sabine of past child support arrearages and future child support, and held that under Family Code Section 3651(c)(1), the trial court had no authority to make an order requiring Sabine to accept less than the full amount due. But the facts of that case reflect that Toshio imposed his will on his ex wife through nonpayment of her much-needed support payments, and essentially gave her no choice but to accept his compromise. Nevertheless, that case provides some authority for a court to disapprove a compromise settlement of child support arrearage.

Nevertheless, in Marriage of ROBINSON (1998) 65 Cal.App.4th 93, the appellate court held that the resolution of a bona fide dispute regarding support is acceptable, and in Marriage of THOMPSON (1996) 41 Cal.App.4th 1049, the appellate court indicated that there must be a dispute for there to be a valid accord and satisfaction.

If there were unfortunate economic circumstances which made it impossible for the payor to pay child support, the best thing to do would have been to file an Order to Show Cause to modify child support. But the circumstances may have been so dire that the payor may have not been able to afford an attorney, at the time. So what can you do now? If you have the understanding and sympathy of the payee, you could enter into a written agreement to compromise the arrearages, albeit without any guarantee that the Court would honor the agreement. In HAMER, the court found that there was no evidence of any alleged agreement, so a written agreement would be better than nothing, and would avoid the risk that the trier of fact might belive one party over the other regarding an alleged oral agreement. But it might be advisable, in addition, for the parties to enter into a written STIPULATION AND ORDER, to file with the Court. The Court might or might not sign the ORDER; if it doesn't, you would still have the written agreement to submit to the Court if needed later, again without any guarantee. If the Court signs the ORDER, it should create a greater level of comfort for the payor.