WARNING: Obtain a Judge's Signature or Face Repercussions
The situation is a common one, but not always a positive one. For various reasons the two parties involved come to an informal (i.e. not signed by a judge) agreement that their original court ordered child support or alimony payments will cease or be reduced. While their intentions may be good at the time, and their agreement may even have been in writing, the Shaw Law Firm has found that these "informal" agreements often backfire.
I have seen and heard of many reasons why the parties agree to such informal, non-court ordered agreements. Some examples include:
- The custodial or primary residence parent (Receiver of support funds) voluntarily asks the other parent (Payer of support funds) to maintain custody of the children for a period of time and in return the parties either orally or in writing agree that child support payments will cease during this time period.
- The parties agree that if the non-custodial parent (Payer) will consent to allow the other parent (Receiver) to remove teh children to another state, then child supprt or alimony payments will stop.
- The Payer wants to go back to school and the parties agree to temporarily halt or reduce alimony or child support payments during this time period.
WORDS OF WARNING - Do not believe that these informal agreements will really modify anyone’s support payments. What almost always happens is that down the road, despite any agreements to the contrary, the original Receiver will bring a motion for contempt demanding that the Payer either pay, or be held in contempt of court for failure to pay the full amounts of child support or alimony specified in the original divorce order. These Receivers will do so, agreement or no agreement. Is this DIRTY POOL? Yes it is. But does the Receiver have the court behind him or her on this? YES!
The general rule is that two parties cannot, between themselves, modify the terms of child support and alimony. If the Receiver wishes to bring the issue back to court, the court will order the Payer to pay arrears for the amounts underpaid – EVEN IF BOTH PARTIES, IN WRITING, AGREED TO THE CONTRARY – EVEN FOR THE BEST OF REASONS.
EXCEPTION – There is an exception to this rule in the case of child support. It is a narrow exception and it usually involves providing the Receiver alternative support for the children, such as in the first example above where there is a voluntary transfer of custody for a period of time. However, this exception is narrow SO DON’T RELY ON IT. Even if both parties are agreeing in good-faith, GET A COURT ORDER! This can be easily done if both parties agree, plus it can be done on a temporary basis, if that is what it takes. But only a court order in the end, except for the technical and narrow exception to this rule, will protect you from the custodial parent (or Receiver) bringing you (the Payer) back to court and collecting child support or alimony arrears, when you in good-faith thought you otherwise had an solid agreement.
SUMMARY
It is my intention that all the bold and capitalized letters above are screaming out at you. Except for the narrow exception to this rule, no matter what the reason, and no matter how sincerely the parties are when they informally either verbally or in writing agree to reduce the original court-ordered support payments, these agreements are not legally enforceable. Sometime down the road, maybe a year or two later, it almost inevitably happens, the Receiver will bring an action to collect the support arrears. And the often sad, and unjust, result is that the trial court will have no choice but to order the arrears paid, with interest. DO NOT RELY ON ANYTHING BUT A COURT ORDER -- SIGNED BY A JUDGE -- WHEN IT COMES TO MODIFYING CHILD SUPPORT OR ALIMONY PAYMENTS!