The “Nuts and Bolts” of Child Support Arrears
“Arrears" means past due support. Arrears are created when a child support order is made and there have periods of time in which support payments were paid only partially or not at all. Section 685.020 (b) of the California Code of Civil Procedure mandates interest on arrears at a legal rate of 10% as each payment becomes due. This has been the law since January 1, 1984.
If you owe arrears, depending on your circumstances, you may be able to negotiate the arrears (and interest) down significantly. Generally, arrears owed to the local child support agency for public assistance reimbursement (i.e. welfare) may be negotiated downward if certain requirements are met. If you owe money directly to the custodial parent, (i.e. non-welfare monies), the arrears cannot be reduced by the local child support agency unless the custodial parent participates and consents to the settlement.
As you have read in my first article about child support, the government is provided under the law, broad enforcement powers to enforce and collect court ordered child support. I had a client whose application of a renewal of his passport was denied due to an arrears balance of $118,595.71. The debt was not owed to the government but to the custodial parent. I worked with all the parties involved: the custodial parent, the child support agency and its attorney and my client to resolve a reasonable resolution that would be to the best interest of the subject child at issue (who is now age of majority).
After months of negotiations, I was able to finalize a deal which zeroed out my client’s high debt upon a lump sum payment of $12,500. A court document is completed and filed with the court with all parties signatures affirming the agreement to insure that there is no doubt as to the credibility and validity of the waiver. It is crucial that the attorney you hire to negotiate on your behalf is trusted by the custodial parent and do not employ any coercive or intrusive tactics. It must be clear that the goal is not to “nickel and dime" the custodial parent but that an agreement is reached with the child’s interest as the primary goal.
Notwithstanding the court or the child support agency’s broad powers to insure collection of the arrears, only a custodial parent (non-welfare) has the power to forgive (waive) arrears. The court is also without power to waive the interest that has accrued. Like my case, if the parent entitled to the support chooses, for whatever reason, to excuse part or all of the support arrears and the interest that has accrued thereon, the attorney must prepare a stipulation and order to be filed with the court for the agreement to be finalized.
Keep in mind that if the arrears have been assigned, defined as “welfare reimbursement" support arrears cannot be legally waived. There was what was called a Compromise of Arrears Program (COAP) that was in effect until July 1, 2008. In certain cases, the law allowed a parent to pay less than his or her total child support debt owed to the government. The agency determines if you are eligible and the criteria of eligibility is very specific.
There is a special compromise opportunity for certain military personnel. Current reservists or National Guard that have been activated to military service and deployed may receive a total compromise of any governmental arrears. This is because their current child support was not changed to reflect that their pay in the military is less than their pay in the civil workforce.
The primary objective by both parents and the government in the collection of child support for the minor(s) is to determine and set forth what is for the best interest of the child. As such, having an attorney that does not lose sight of this goal insures that the negotiations amongst all parties are effective and fair.