Bay Area Divorce Lawyer Blog
Marriage of Burmester highlights the disastrous consequences that can result from poorly worded or structured child support agreements and orders.
Shortly before Husband and Wife divorced in 1999, they entered into a marital settlement agreement / court order resolving support, property division, and other issues related to the dissolution. Husband would pay Wife $803 per month in child support–$368 in base support and a $435 child care allowance–for their two kids. That was the first mistake – including the daycare as part of the monthly child support amount. To whatever extent the parties share or pay for daycare it should be separate from the child support payment. The child support obligation would be retroactive to September 2008, the month in which Husband and Wife initially separated. Husband paid more than $48,000 in child support over the next 14 or so years.
Husband lost his job in 2013 after suffering an unknown physical injury. He wasn’t able to work at this time, and he underwent surgery and rehabilitation. And the second mistake was not going back to court to modify support and stop the daycare order when not needed. Wife also lost her job at around the same time. She eventually went back to court, seeking child support arrears from Husband. Although the parties agreed that both children became emancipated and were no longer entitled to support by 2014, the trial judge said Husband owed Wife more than $70,000 in unpaid earlier support. After adding interest in the amount of some $27,000, the trial court hit Husband with a $97,000 bill for the unpaid support.
The court determined that the 1999 judgment was enforceable until modified by a later court ruling “[I]f daycare goes away, then the support order based upon the daycare still keeps ticking away until somebody files a motion to modify.” The court relied upon In re Marriage of Tavares (2007) 151Cal.App.4th 620 and section 3692 to conclude that the court may not set aside a support order simply because subsequent circumstances cause the support order to become excessive. The court then determined that William owed arrears of $60,136.35 principal and $27,274.45 interest, for a total of $97,410.80.
“The child support provisions here, considered together, set forth an obligation of $803 monthly, continuing until further order of the court or termination by law,” the Court said. Although the agreement divided that amount into base support and child care, the Court said that provision was “informational” only. So even though the $435 for daycare was not needed and the parties had agreed to that between themselves, it was still a court order and required a formal court modification to terminate or the obligation continues.
The Court also said that Husband should have gone back to the judge and asked for the support obligation to be reduced if he felt it was more than needed, instead of fighting it after the fact. “[A] parent who has skipped the opportunity to modify a support order may not undermine accrued arrears by later contesting expenses,” the Court explained.
It is so important to ensure that child support orders do not create headaches like this down the road and also important to have a process for making modifications in the future that also do no harm.
Child support is just one of the issues that can come up in California divorce cases. Fortunately, alternatives to traditional litigation often give former spouses and parents an opportunity to reach solutions with efficiency and mutual respect.
With offices throughout the Bay Area, California divorce lawyer Lorna Jaynes approaches divorce cases as a problem to be solved collaboratively, not a battle to be won. She handles each case personally, taking the time to understand each individual client’s needs and interests and explaining the various options for resolving these matters. Call us at (510) 795-6304 or contact us online to set up an appointment.
Related Blog Posts:
Child Support Obligations for “De Facto Parents” – In re Marriage of Abbate
Alameda County Divorce Court – Why Divorcing Couples Should Stay Out of Court