The dangers of verbal modifications of child or spousal support.
Many people have asked for assistance with the enforcement of a verbal modification of child or spousal support. The story goes something like this…
“My ex spouse and I agreed to reduce the amount of support for our kids (or spousal support) from $1,000 per month (or fill in the blank) to $500 because my income went down and we didn’t want to go back to court. I have been paying the reduced amount for the last two years and now my spouse is saying I owe him/her $12,000 plus interest in back support!”
I have to tell the person asking me for help that their may not be much I can do. When the court makes an order for support, that order is enforceable until it is changed by another order or becomes unenforceable as a matter of law.
For instance, if you have a spousal support order that ends on the death or remarriage of the supported party and that party dies or remarries, the order is no longer enforceable as a matter of law. The same is true if a child support order ends on the child turning 18, or 19 if they have not graduated from high school, and the child graduates high school and turns 18, the order is no longer enforceable as a matter of law.
When parties agree to modify their support order and don’t bother to write their modification up in a stipulation (agreement) and file it with the court to change the order, the order that is in place at the higher amount is still effective and if the receiving party decides to change their mind, they can collect the back support plus 10% simple interest.
Also, if the aggrieved party tries to change the order back to the date of the agreement, they will encounter the problem of the court being prohibited to make an order retroactive to a time earlier than the filing of the request to modify the order. See Family Code Section 3653.
The short answer is to always make an agreement to modify support an order in writing that conforms with the requirements to have it submitted to the court. The Judicial Counsel makes this easy by providing forms the parties can fill out, sign and submit to the court to change their order.
These forms can be found at www.courts.ca.gov. This will eliminate any surprises down the road when one of the parties decides to renege on an oral agreement to modify support and decides to collect the arrearage in addition to interest at 10 % per year.
If you are considering, beginning or currently facing divorce proceedings, call us for a more complete description of our divorce and other family law legal services. These include child custody, spousal and child support, post-judgment modifications, property division and paternity services. We accept most major credit cards.