This is my husband's case and we live in CA. 3 years ago, my husband's salary was drastically cut and he began making smaller than ordered child and spousal support payments. Within 6 months, he filed for a modification and she fought it claiming he was hiding income (he wasn't). 6 months after filing, she agreed to a lower support amount and to waive the arrears that had accrued. She was not receiving state benefits at this time. My husband has now lost his job and they are going back for another modification. This time she is trying to reinstate the arrears she waived 3 yrs ago based on Sabine v Toshio. Has anyone here encountered a judge overturning an arrears waiver stipulated by the parties themselves?
In my experience I have seen judges pretty much do whatever they want, good and bad, so you never know. The case she is relying upon is a narrow ruling where the ex husband did not pay anything for 8 years, then offered to only pay a small portion of the ordered amount in exchange for a release of all past and future support. The court found that this agreement was unenforceable because it did not resolve any issues in dispute and was offered on a 'take it or leave it' basis. Based upon the limited facts presented, it sounds as though your husband and his ex entered into an enforceable agreement that would be hard to overturn, but again, you never know. I strongly suggest you hire an attorney for your modification hearing to fight her request. She may be able to collect arrears for the initial 6 month period before he filed for modification, and for the 6 months after filing and prior to the agreement, depending on how your judge interprets this case law. If this agreement was in writing, it will be all the more enforceable. Good luck.
Lisa Ann BergFamily Law AttorneySolana Beach, CA ·
I agree with my colleague - judges will do pretty much anything they want to do. If the previous waiver of support is in the court orders then those are the orders and stand as they are. Courts want final orders to remain final orders.
From your question, it sounds as though she is now receiving state benefits. If this is the case, then the court will most likely require your husband to make job contacts and impute income upon him - i,e, minimum wage. However, be sure that your husband requests the court to order his ex-wife to make job contacts as well and impute minimum wage upon her. BOTH PARENTS EQUALLY HAVE THE DUTY TO SUPPORT THEIR CHILDREN.
If she is on State aid - she CANNOT LEGALLY agree to lower child support to zero pending your husband getting a job. But, if she is not on State aid, she can agree to reduce the support amount to zero with your husband making job contacts and a future court date set for a review.
Good Luck to You.
