Family Law Questions? Ask a Family Lawyer Online.
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.
my bad..new agreement was written and signed by ex and myself and was accepted in superior court....
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.
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.
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.
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?
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.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).