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Lawmoe
Lawmoe, Family Law Attorney
Category: Family Law
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Experience:  Family Law Lawyer for 19 years
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divorced in 1996..two children...never went to court...move

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divorced in 1996..two children...never went to court...move ahead to 2008.. due to me falling into arrears we ( ex and myself) agreeed to a "new contract" ( ex wife, legal sec. wrote up the new agreement, not a judge) we did this instead of going to Child Support services or Court.
Here is the question..everytime I question anything about our new agreement ( we differ on how its to be interperated) the ex threatens to take me back to court and seek all the arrears plus what Im currently paying..as long as I stay current on new agreement, can she do that? I mean, she could not even disagree with me and say, "hey, you know what, I changed my mind. I do want all the back payments you failed to pay, even though your fulling your end of the new agreement." Does the new agreement waive her rights to past arrears as long as i stay current?
Submitted: 4 years ago.
Category: Family Law
Expert:  Lawmoe replied 4 years ago.

First of all, a court order is law of the case. If you wish to modify a court order, you must do more than simply sign an agreement. You must have that agreement memorialized in court as an order or the previous order remains enforceable.

 

Second, child support is viewed as a right of the child and not a right of the parents. As a result, the court must sign off with an order on any enforceable child support awards or modifications.

 

Third, based on federal law, child support can never be modified retroactively except back to the date that a Motion is filed.

 

With respect to all of the above, you have a significant problem since. Without an agreement from the other party to change the order and the arrears, they remain collectible. There are some equitable arguments that can be used should your ex seek to collect arrears such as "unclean hands" or "laches", but I do not see them as particularly strong.

 

I am sorry for your troubles.

 

PLEASE CLICK ACCEPT BELOW.

 

Customer: replied 4 years ago.

my bad..new agreement was written and signed by ex and myself and was accepted in superior court....

Expert:  Lawmoe replied 4 years ago.

If the new agreement was written, signed and presented in court where it was entered as an order, the opposite analysis applies. Child support can NEVER be modified retroactively except back to the day a Motion is filed. As a result, your ex cannot seek arrears.

 

If you had arrears prior to the last stipulation and order that was entered, and those arrears were not addresses as part of your agreement, there is some chance your ex could seek to have those arrears reduced to judgment and collected. It would be tough to prove what remained unpaid and there would also be an argument that any arrears should have been addressed as part of the last stipulation and order, and since they were not, they were waived.

 

Customer: replied 4 years ago.

so far so good...below is a copy of agreement..will pay more for advice if needed..

also does 1/2 of two hundred mean 1/2 of ALL or half of anything OVER 200..ex thinks it means all and I disagree, example..if cost is 300.00, I say my half is 50.00, not 150.00..opinion please

Commencing September 1, 2008 Respondent shall pay to Petitioner child support in the agreed-upon modified amount of $xxx.00 per month payable on the first day of each and every month thereafter and shall continue through June 2016 or until further order of the Court.

If, at any time, Respondent becomes in arrears of the agreed-upon modified child support of $xxx.00 per month through June 2016, Petitioner may resume enforcement of all child support arrearage amounts including, but not limited to, Respondent's existing arrearage of $xxxxx.48 (as of September 30, 2008) plus interest, less credit to Respondent for payments made.

As additional child support, commencing November 1, 2008 Respondent shall pay one-half of any expenses for the children that exceed $200.00 relating to school and extra-curricular activities such as sports, dances (such as Winter Formal, Sadie's Hawkins, Prom), senior year costs, books/supplies/tests and testing materials, driver's education/training, etc. Respondent's one-half payment of such agreed-upon expenses shall occur within 30 days of his notice of such expenses incurred by Petitioner.

Expert:  Lawmoe replied 4 years ago.

That is an interesting agreement. It essentially includes a balloon clause which allows your ex to collect on any past arrears if you make a late payment. The interesting part is that it does not state what happens to the arrears if timely payments are made. Are they ultimately wiped out or only collectible later?

 

With regard to the balance of the agreement, it states that you pay one half of any expenses only after the threshold of $200 has been reached. So, if the expenses are $300, you pay one half of $100 or $50.

 

Customer: replied 4 years ago.

ok last question then and thank you for the advice..

 

in your opinion, as long as Im current on the above agreement, im not on the hook for the past arrears?

Expert:  Lawmoe replied 4 years ago.

WIthout additional language, I believe that a fair reading of the stipulation and order indicates an intent to dismiss any arrears so long as payments remain current. Any other reading would seem inconsistent although the language could have been written much more clearly.

 

Lawmoe, Family Law Attorney
Category: Family Law
Satisfied Customers: 2415
Experience: Family Law Lawyer for 19 years
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