There are two types of support in Family Law cases in California. There is child support, which refers to support intended to assist in providing for the needs of the children involved in the case. Then there is spousal support, sometimes called “Alimony” (The two terms are interchangeable) which is intended to provide spousal maintenance after a divorce proceeding is initiated. During the course of a case, the court may make an order for either, or both, child and spousal support. After the order has been made, the court expects the amounts to be paid.
When either child or spousal support orders are not paid, or are only partially paid, the payor party (the party who pays support) is said to be “in arrears” for support. This simply means that support is past due.
In this situation, the payee (the party who is receiving support) can file a motion for support arrears. The motion is essentially same for child support arrears and for spousal support arrears. You calculate the amount that has not been paid, you include interest on that amount (this is automatic for child support arrears – (See Marriage of Popenhager ) at 10% per annum (See CCP §685.010), and you ask the court to order Judgment on arrears in your favor. If you have an attorney file the motion, you may also ask for attorney fees and costs, which are also mandatory after the court make certain findings about the parties’ finances.
What if the payor made partial payments and you accepted the money?
According to California case law, the acceptance of a support payment which is less than the court ordered amount of support is not a waiver of the full amount owed. (See Marriage of Hamer). That means if the payor owed you $1,000 and only paid you $500 for the month, you can still accept the $500 without being penalized. The principal is that you should not be penalized for accepting something from the payor party when you need the full amount. The payor would receive credit for any amount they paid, but would not be absolved of the full amount that was due.
There are some complicating factors that are involved her related to what is referred to as a “waiver” in California. An example of a situation that might involve waiver is where you tell the other party that it is okay to only pay them part of the money and that you will not go to court for the rest. If you later file a motion for the unpaid amounts, the court could find you waived your right to receive these payments. Of course, this example is oversimplifying the issue of waiver, so it is important to discuss you specifics with a qualified family law attorney.
What if it has been many years since I stopped receiving support? Can I still get arrears?
Generally, the answer is yes. Family Code §291(a) states:
“A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied.”
This means that it is possible to come back many years later, even years after your children have become adults to request support arrears. This includes the ability to collect past due support arrears from a deceased party’s estate.
The principal behind FC §291 is that during a time when the support order was valid, you had to make do without the support you were ordered to receive. Just because you (and in the case of child support, your children) survived without the support does not mean you are not still entitled to the money now or that the payor party does not still owe that money to you.
Sometimes the amount in controversy is only a few hundred or a few thousand dollars. Other times the unpaid support can be in the tens, if not hundreds, of thousands of dollars, especially when the 10% interest is applied. That is why it is important to speak with a qualified Family Law Attorney if you are faced with a support arrears issue.
This is especially important if you are the party who has not paid the support. It is possible to negotiate the resolution of these support arrears, including a repayment of the amount owed in monthly installments. It is detrimental to you and your case to not face these issues head-on. Not only does the amount owed continue to accrue interest, if the other party seeks the assistance of the County (In San Diego it is called the Department of Child Support Services), you could be faced with driver’s license suspension, business license suspension and potentially jail time.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child or spousal support arrears. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.