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yankeesfan83 · Apr 27, 2009, 07:10 AM

Back in 1998 I lost by default in a divorce. I was court ordered to pay my ex wife $750 a month in child support for 1 child. A month after the order I told her that I couldn't afford that much so she said I can pay her $400 a month, which I paid her every month; I didn't know that the agreement had to be in writing and submitted to the court. Now 11 years later, she has filed with the child support services to collect the back child support of $350 a month for the past 11 years, plus 10% interest for every year. Is there any way that I can fight this? I cannot afford to pay a lawyer as it is, especially if there is no chance of winning, but if there is a chance that I can win this, I guess I will have to save up some money.

stevetcg · Apr 27, 2009, 09:02 AM

If it wasn't court approved/ordered, you are basically stuck and probably cannot fight it. You may be able to fight the interest, but even that is a long shot.

Sorry.

Maybe if you weren't a yankees fan... ;)

<--- red sox fan. :)

cdad · Apr 27, 2009, 02:50 PM

Who have you been making child support payments to ? Was it directly to your ex or though the child support agency in Cali ? Do you have any proof whatsoever of what your stating ? Did you pay with checks ? Do you have or can you get copies of them ?

What was your actual support suppose to be according to what you have figured out ?

ScottGem · Apr 27, 2009, 03:06 PM

The key here is whether a court is going to believe that your wife agreed to accept less. And without any written proof, you may be stuck. The ex could just say that she took pity on you and expected to you increase the payments when you could afford to, but since you never did she decided to take you to court.

cadillac59 · Apr 27, 2009, 07:07 PM

You cannot change a child support order by a verbal agreement. A child support order is an order like any other and requires a new and different order to change it. It's just that simple. So the fact that you agreed to something other than what was in the order is meaningless. Even if you had put your agreement in writing it would be meaningless unless it had been submitted to the court and the had judge signed off on it.

There are virtually no defenses to enforcement of old child support orders any longer. About the only two that are left are "concealment" and "constructive receipt."

Concealment is where the custodial parent hides the kid from the other parent until the age of majority. Constructive receipt (or a Trainotti defense) is a kind of equitable defense that says that if the kids came to live with the non-custodial parent during the time a child support order ran and the parties just never got around to changing the child support order, we can treat the arrearages as having been paid.

If you cannot avail yourself of one of these two defenses, I'm afraid you're out of luck.

Yours, incidentally, is a not-uncommon problem/occurrence in California.

cadillac59 · Apr 27, 2009, 09:49 PM

One other thing I wanted to mention. Interest on unpaid child support is mandatory at 10% (which is ridiculously high) and cannot be set aside or modified by the court.