By: Curtis Wiberg
In the practice of family law, it’s not too uncommon to come across a case where a parent, who has been ordered to pay child support, did not meet their obligation for many months or even years until the child has become an adult, with the child support never being paid. When the party who was supposed to receive the support then determines they want to pursue collection of the unpaid child support arrears, many legal challenges on both sides of the dispute can arise. The side of the equation you are on can matter when dealing with old child support orders, including if you the payee having to worry about statute of limitations issues or a laches argument pursuant to Johnson & Johnson, 380 P.3d 150, 156 (Colo. 2016). If you are the parent who owes, you may face financially crippling repercussions, including wage garnishments, seizure of property, and interest which may very well exceed the principal owed.
The laws regarding Denver child support are generally favorable to the party owed that support. The statute of limitation on enforcing a child support judgment is twenty years from the date of the judgment. Furthermore, each month’s support payment acts as a separate judgment, so that even if part of the child support is older than 20 years old, those months occurring within the last 20 years are still collectible.
Even more favorable to the party collecting support is that each month’s support that is not paid accrues 12% per year in interest, compounding monthly (compared to other civil judgments in Colorado only accruing at 8% annual interest). While this boosted interest is intended to incentivize the party paying support to stay current on their obligation, its effect on these old child support cases results in staggering amounts owed. I’ve seen the interest owed on old child support judgments topping 3 or 4 times the amount of the principal amount of unpaid child support. In one judgment we dealt with, the $140,000 principal amount ballooned to over $400,000 when interest was applied.
So, if you were owed child support arrears within the last twenty years and never received payment, it may behoove you to consult with a family law attorney to discuss whether collecting on the back owed support is possible and worth your while. However, there are significant hurdles to collecting that can arise.
For one, the party owing support may not have paid when the support was owed because of inability to pay due to low income, job loss, disability, etc. If those circumstances continue to persist with the the payer, the expense of trying to collect may outweigh any benefit of trying to do so. It really only makes sense to attempt to collect if the owing party has righted their financial ship and are in a position to contribute to the amount owed. Assessment of whether pursuing this support is worthwhile will include not only an analysis of income and employment, but potentially also as relates to assets. Some assets can be garnished via a Writ to satisfy a child support debt. In some instances, garnishment can be up to 65% of the obligor’s disposable income per pay check.
Another significant hurdle to a party attempting to collect on an old support order is a legal defense known as “laches”. Laches is an equitable defense wherein a court can invalidate the attempt by one party to enforce a claim because so much time has passed that the enforcement attempt is deemed unfair. Specifically, there are 3 elements for a party defending an attempt at collecting an old child support debt to prove to successfully assert laches: 1) full knowledge of the facts by the party against whom the defense is asserted; 2) unreasonable delay by the party against whom the defense is asserted in pursuing an available remedy; and 3) intervening reliance by and prejudice to the party asserting the defense. See Johnson at 156.
What this 3 part test is saying, in lay terms, is that if the party owed support was aware of how to contact the party owing support and had the ability to attempt to enforce the judgment at an earlier time, determines not to do anything about it for a significant period of time (unreasonable delay) so that the party owing relies on the inaction and is prejudiced by the delay, then the court can block collection efforts on the amount of interest that accrues. It is important to note that the Johnson case states that the defense of laches can’t be used to invalidate the principal portion of the child support owed that is still within the twenty years statute of limitation. Still, considering that the lion’s share of the amount owed can be the accrued interest, it is imperative for a party defending against a collection attempt on an old child support judgment to assert the defense of laches.
If you find yourself in a situation in which there is an old child support debt still unresolved, you should seek out the insights of Denver family law lawyers to determine what your legal rights, responsibilities, and options are.