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In family law, can a party waive their right to come back to court to modify?

Costa Mesa, CA |
Filed under: Family law

I am battling my Ex once again in court. Happens every year - sometimes more than once per year. She loses - but keeps coming back.

So I'm looking at creating a stipulation between us, and part of that would be to include a waiver by BOTH of us to return to court on the issues in the stipulation until my daughter is 21 (she is severely disabled).

My question is, can we waive that right? I'm tired of her agreeing to things, only to have her drag me back to court a couple months later claiming "change of circumstance".

My issue is that she continues to claim that she's broke due to monthly expenses, yet she buries herself in legal expenses - and then uses those expenses to claim she has no money to pay. It's a self-fulfilling prophecy that she continues to use to claim she has no money. My suspicion is that her employer is helping her to hide money by paying for her legal bills and other things, and not claiming it as income to her. Oddly enough, the attorney that is representing her now has represented her employer at least 13 times over the last 10 years - yet has no family law cases he has tried. Odd for someone to pay such a large amount ($350/hr) for someone that has NO family law cases under his belt.

Attorney Answers 5

Posted

It is unlikely that the Court would honor such a waiver. Such a waiver would be against public policy - what would happen if an emergency arose which required a decision and you and your ex couldn't agree as to the solution?

Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

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Asker

Posted

Hello Donald. Thank you for the response. Since we currently have a Family Support order, and she is seeking to terminate the spousal support - which I am fine with, actually - I just want to stop the constant barrage of legal attacks. She claims that she is broke because of expenses, but continues to bury herself in legal debt and then using this debt to say she's broke. So my thought was to drop the spousal under the condition that we make an agreement not to come back - and if we do, that the current (or in the wording of the stipulation, the previous) family support order be immediately reinstated until the court orders otherwise.

Posted

Probably not but why not work out an agreement to mediate the issues an find a mediator that you BOTH can work with. With disable children you might want to look for a mediator that has a specific background in working with disable children and their parents. perhaps you could contact some organizations that advocate for the disabled for some resources.

IF YOU FOUND THIS ANSWER HELPFUL PLEASE MARK IT SO. This information is provided by PEGGY M. RADDATZ, Attorney At Law as a pro bono service. YOU SHOULD CONSULT WITH AN ATTORNEY IN PERSON who has specific expertise in the area of law you are asking about.

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Hillary Johns

Hillary Johns

Posted

Ms. Raddatz is right as are the lawyers' responses here. If this keeps happening with this type of problem, think about asking for some type of way to work it out informally and request that it be part of a court order.

Posted

Most things can be waived but child support modifications -- I don't think
so. Sorry
>

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Posted

Certain issues can be unmodifiable but child support and child custody are not one of them. If she is filing frivolous pleadings with the help of a lawyer, what you should consider is serving the lawyer with a sanctions motion pursuant to Code of Civil Procedure 128.7. If you have a long history of frivolous orders to show cause or motions by this attorney that has represented her, a 128.7 motion against the lawyer will get his or her attention because it is he or she that is on the hook for your fees if the court grants your motion. The procedures for 128.7 are a little involved and you will need an experienced lawyer's help to do it right. Separate from that, if her claims are really as frivolous as you claim, there are other statutory ways to prevent her from coming back to court but that requires a more in depth discussion.

Anytime a question refers to a document, whether or not filed with the court, a complete answer cannot be provided until the document is reviewed. Our law firm offers a free consultation to prospective clients who have divorce and family law questions. Contact us by telephone or email and we can give you a more detailed answer to your question.

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Posted

In California, child support is one of the most protected rights. As such, a party cannot waive their rights for the court to order child support in appropriate circumstances. However, you are correct in that there must be a substantial change of circumstances. The most logical way to keep your ex from seeking to modify child support improperly is to have a stipulation that provides that attorney’s fees should be paid to the prevailing party. In other words, if she does not sustain her burden of showing changed circumstances, she has to pay all of your attorney’s fees. It is my belief that the only way you can discourage her from going back to court frequently is to make her pay your attorney’s fees.

It is also my understanding that child support, in the state of California, is not expense driven, but income driven. The computer software that determines child support is income driven. The only expenses that count are those that affect that income, such as mortgage interest deductions, real property tax deductions, etc. It would be unfair for one spouse to say that he/she has more expenses and therefore needs more support. Likewise, the payor parent could not have huge expenses to defeat the other party’s claim to child support. The support schedules make it very clear that a set amount of support is ordered. Both parties have to adjust their expenses accordingly. The support amount dictates how parties should budget their money, not their expenses.

While your suspicions about her employer may be correct, you would be embarking on a very expensive course of action trying to prove the same. Think twice before you involve her employer in your legal battle.

I am concerned with the fact that you have mentioned your daughter’s approximate age at 21. The age of majority, in California, is 18 unless the child has not graduated high school but has not obtained the age of 19. Apparently, your statement leads me to believe that your daughter is disabled to the point of qualifying for adult child support. Adult child support is governed by Family Code 3910. That area of law is not litigated that often and requires the expertise of an attorney to properly navigate you through the process.

I am a lawyer but I am not your lawyer. I am only offering general advice that is not specific to your case. For you to get advice you should consult and retain a lawyer. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider. If you have any specific questions about any legal matter you should consult your attorney or other professional legal services provider. You should never delay seeking legal advice, disregard legal advice, or commence or discontinue any legal action because of information on this website.

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Peggy M. Raddatz

Peggy M. Raddatz

Posted

excellent answer counsel

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