Areas of Practice:

Back Child Support Problems ("Arrears")

There are many circumstances where parents have fallen behind in their monthly payments, and this can result in a situation where it becomes difficult if not impossible to catch-up.

In one of our cases, Dad owed $25,000 in back child support because he had delayed going to Court and modifying an incorrect court order. The interest alone adds up to more than $200/month. It will take him years to pay-off this debt; a debt that could have been easily avoided.

[Footnote: In an independent report prepared for the California Department of Child Support Services, the Washington, DC-based Urban Institute concluded that - - - to a large extent, excessive back child support (in California) is a product of unfairness in the system.]

Many people are unaware that there are procedures that may be available for dealing with back child support problems.

Under California law, the following 12 tools/strategies may be available for dealing with Back Child Support/Arrears matters:

1. Compromise of Arrears Program. For cases where back child support is owed to the County, California has implemented a temporary program where the debt could be reduced up to 90%. Recently, we resolved a case where $9,790 was owed to the County; the case was settled in exchange for $2,198 (a reduction of nearly 80%). In another recent matter, we settled a back child support debt of more than $24,000 in exchange for a lump sum payment of $587. This represented a reduction of more than 97%.

2. Suspension of Interest under Chapter 13 Bankruptcy. Although back child support cannot (and should not) be reduced under bankruptcy, if you have a job and can complete a pay-off within five years, then you may be able to get interest waived (and all payments can therefore be applied to the back child support).

3. Motion to Re-Determine Back Child Support. If the amount of back child support is incorrect (e.g., you have not been credited for payments you made), then it can be corrected by filing a Motion with the Court.

4. Petition for "Equitable Forgiveness." Although you cannot ask the Court to modify child support retroactively, the Court can excuse back child support in situations where the child was actually living with you during the time period that the back child support was accumulating. In one of our cases, we were able to excuse 2½ years worth of back child support (at $370/month), because we were able to show that the child was actually living with Dad during the entire 2½ year period. This resulted in a savings of more than $11,000 to the client.

5. Motion to Set-Aside Invalid Court Judgment. If your back child support is based upon an invalid Court Judgment ((e.g., you were never properly served with Court papers, and/or the Judgment was entered without your having been to Court), all or a portion of the debt can be wiped-out if the Judgment is set-aside. In one of our cases, where the parent was "served" at the wrong address, we were able to wipe-out more than $27,000 that the County was alleging was owed (to the County, not to the other parent). Since there is sometimes a deadline on making these Motions, it is important to act ASAP.

6. Petition to Set Reasonable Payment Schedule. Even if there is no basis for modifying the amount of back child support, you are still entitled to go to Court to set-up a reasonable payment schedule (so that you will have reasonable funds to support your current household).

7. Negotiating a Settlement with the other Parent. Even though back child support cannot be modified retroactively, the other parent may be open to waiving back support in exchange for a smaller lump sum payment. Also, in certain situations the other parent recognizes that portions of the back child support were unfairly accrued, and may voluntarily reduce it. Any waiver or reduction will almost always require some form Court approval; therefore, NEVER enter into this type of arrangement without consulting with an attorney.

8. New Program to Test for Paternity in Older Cases. Per a recently enacted state law, under certain circumstances an older paternity judgment can be challenged by a DNA test. In other words, if you believe that you were wrongly named as the father, you may still be able to ask the Court to order a DNA test. If the Court orders the test, and if the test shows that you are not, in fact, the father, you may be able have your back child support wiped-out.

9. Stop the Accumulation of Additional Back Child Support. If you have a problem with back child support, one of the most important things you can do is check to see whether or not you are currently paying too much. Although this may seem obvious, the biggest reason behind many back child support problems is that their current Court Orders are incorrect.

10. Request for File Closure. Under certain narrow circumstances, a parent can request that the County close their case file. Again, these circumstances are very limited (and rare); for example, where the parent is on SSI, and has no earnings or assets that can be attached.

11. Parents Re-Taking Custody from Foster Parents. The Family Reunification Program is for parents who owe arrears because aid was paid while the child was in foster care or living with a guardian or relative. The parent can apply for this program if the child is still a minor and is now living with the parent. The parent's net income must be less than 250% of the federal poverty level.

12. Alternative Loan Arrangement. Under California law, interest is added onto back child support at the rate of 10% per year. At this very high rate, it can become very difficult, if not impossible, to reduce back child support. For this reason, the parent that owes back child support should consider trying to obtain a lower interest loan to pay-off the back child support, and then repay the replacement loan at the lower rate. In some situations, a low interest credit card could even be used.
If you are experiencing financial problems due to back child support, you should take action immediately - - before your problems either gets worse or your rights expire.

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