Dad is Out of Luck on California divorce Child Support Issue

Forgiveness may be a virtue in most cases, but it has no role in past due California child support. In other words, when a judge makes an order for child support, the support must be paid as ordered each month. If the support is not paid, it accumulates interest at the rate of ten percent per annum.

Sometimes, people fall behind on child support. It happens. And when it does, the amount of arrears can be staggering, especially when you add on the interest. But California law has long held that you cannot waive child support that has already become due and not been paid even if both parents are in agreement.

This doctrine usually came up between parents who still had one or more minor children and the person paying support was trying to juggle a huge amount of arrears plus the ongoing obligation to pay child support until the obligation ended, usually at adulthood.

Now, in a new case, the California Court of Appeal has extended this doctrine to arrears that exist even though the child or children have grown up. In a case called Marriage of Allen (2026) 2026 DJDAR 1060, the justices ruled by a 3-0 count that the lower judge was right in rejecting an agreement between the parents –Lewis and Danielle- to waive accrued child support arrearages.

In 1996, Danielle filed for divorce. There were four children, and so the judgment, entered in 1998, required Lewis to pay a large amount, namely $3,200.00 per month in family support. (“Family support” is a device used for tax advantages which combines spousal support and child support.)  In 2022, support went down to $2,500 per month because Danielle had remarried which automatically ended spousal support. So, the $2,500.00 obligation was for “child support, whereas the $3,200.00 was for “family support”. The youngest child turned 18 in 2008.

According to the Court of Appeal:

“Lewis made some payments but failed to fully comply with the trial court’s orders. He was declared a contemptuous litigant because he ‘made no reasonable efforts to support his children.’  Lewis ‘terminated his job in September 2000 and moved to Utah to avoid payment of support’. In 2002, a bench warrant was issued for Lewis’s arrest. Lewis later moved out of the United States. He made infrequent payments thereafter”.

In 2020, Lewis tried to work things out with Danielle, who stated that the accrued support, including interest, was approximately $545,000.00. Danielle was willing to deal, but she would only reduce the arrears in half, down to $272,500.00.

Lewis went along with the deal, which called for him to pay off the $272,500.00. He complied. At the same time, Lewis requested that Danielle sign a stipulated accord and satisfaction prepared by his attorney. This document provided that Danielle waived all rights and claims to any of the remaining accrued support arrears. Danielle refused to sign the document, so Lewis filed a request in court that the agreement made in 2020 between the two parents was a “valid written accord and satisfaction as to a child support and family support arrearage that is enforceable”.

The trial judge said no, saying that there was no binding agreement to resolve the arrearages. The trial court also said that any “accord and satisfaction” was unenforceable because there was no bona fide dispute concerning the amount of Lewis’s arrearages.

Noting that the obligation to pay child support runs to the child, not the parent, the justices also relied on Family Code section 3651, subd. (c)(1), which states that a support order may not be modified as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.

Lewis’s other argument was that he and Danielle had reached an “accord and satisfaction.”  But this argument was rejected by the trial court and the Court of Appeal on the ground that there was no bona fide dispute over what Lewis owed, and to have an accord and satisfaction there needs to be a genuine dispute. In this case, there was no other number concerning what Lewis owed other than the original $545,000.00 cited by Danielle.

There were other arguments offered up by Lewis, mostly concerning the accord and satisfaction doctrine, but these theories were rejected.

The point here is that if you are the recipient of support, don’t give up; nobody will rule that you waived support. And if you are the obligor, don’t fall behind. If you do, immediately file a motion to lower monthly support and explain what has changed that warrants lower support. Usually this will be a job setback, a change in child custody, or perhaps even a pay raise by the other side.