One of the most depressing types of cases I handle involve parents, usually fathers, who have significant child support arrears (a past due amount.) Most past due child support accrues interest at the rate of 10% which is awfully high in today’s market – where inflation is below 2% – and the prime lending rate is around 5%. These cases can be almost impossible to solve, especially when arrears have accumulated in the tens of thousands of dollars. Child support arrears should be avoided at all costs since they will haunt you forever.
There are several ways you can get behind in child support. Let’s look three main ones.
The never married father.
Many parents choose to have children without getting married. Often times, a mom and dad can get along pretty well for years, and have a great informal coparenting relationship by successfully sharing parental expenses and time with the child. Then something happens, a new boyfriend or girlfriend, an argument, you name it. The peaceful coexistence is over and dad seeks consult with me to establish his legal rights. The first thing I have to tell him is that there is a chance that he might get slapped with three years of past care and support. In most cases of unmarried parents, the court is required to enter a judgment for past child support using a retroactive application of the guidelines. If the dad has never paid any support, (or has not kept accurate and sufficient records of the informally shared expenses,) and the child has lived mostly with mom, he will be stuck with a past care judgment in the tens of thousands of dollars. He will usually be required to pay several hundreds of dollars a month on top of whatever his normal child support is.This can wreak economic havoc on his life, especially if he has a family, other kids, and/or does not have any discretionary income. The only good news about these type of cases is that the legislature has decided that these past care judgments do not include interest. The best way to avoid this problem is to get a paternity and child support order as soon as possible after the child is born. If you do work informally with the other parent, it wouldn’t hurt to consult with a lawyer to figure out approximately what child support should be. You can pay that amount to the other parent informally and you will get credit for it as long as you keep good records. You might also get credit for buying clothing, paying for daycare and other money you spend for the benefit of the child. However, it is very important that you keep records.
Informal agreements.
A father comes to me and tells me that he has been sharing equal time with his 10-year-old child for 6 or 7 years. Long ago when the child was 3 years old, the court entered a custody order giving mother primary residence and a child support order of $400 per month. Shortly after the order, because the parties were getting along so well they agreed to a 50-50 custody arrangement and because their incomes were approximately equal, they also agreed that dad did not have to pay child support but they would just split expenses such as daycare, extracurricular activities and non-covered medical bills. Then something happens, an argument, a new boyfriend, a new girlfriend, you name it. Mother denies that there was an informal agreement and wants to get all the back child support. The law is pretty rough in these type of cases. The law requires a father to prove by clear and convincing evidence that the mother has waived child support and this is a very hard thing to prove. Father then gets slapped with tens of thousands of dollars in back child support. Additionally, he is responsible for interest on the judgment at 10%. Sometimes he has to pay $200 or $300 per month in interest alone. The best way to avoid this problem is to GET IT IN WRITING! If you have an agreement to stop paying child support, all you have to do is write up a simple contract signed by you and the mother saying that you agree to $0 in child support and that you’re going to split expenses. Without this kind of an agreement, you are probably sunk. If the other parent refuses to sign this type of agreement, you must see a lawyer and go to court to have the child support formally changed.
You lose your job.
The parent who is ordered to pay child support comes across hard times and loses that well-paying job. He might work a little here, a little there and stops paying child support because the income withholding order no longer takes it out of his paycheck and he can’t afford to pay because of his economic problems. Again, these parents will come see me and oftentimes they believe that they can have their child support reduced back to the time when they lost their job. NOT SO! Arizona law is 100% crystal clear that you cannot retroactively modify child support. Any reduction in child support is only effective the 1st month after you file. I know what you’re thinking; you cannot afford a lawyer because you don’t have a job. You can contact the child support division of the Attorney General’s office (contact information provided here) and they can help you lower your child support. Or, you can go online to access the relevant forms available on the Pima County Superior Court website to reduce your child support.
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