The Court’s Ability to Modify Arrears
DISCLAIMER: The following is not meant to be legal advice. It offers alternatives,
tips, and resources for those with no means to hire an attorney. For a
more thorough understanding of the law regarding child custody, please
examine the applicable Sections of the Family Code, the applicable Rules
of Court, and the Local Rules applicable to the jurisdiction where your
case is filed.
Arrears (also known as arrearages) are
child support or
spousal support payments that a supporting parent or spouse has failed to pay when due.
For instance, if a parent has been court ordered to pay $500 each month
in child support, but only paid $300 per month for the last six months,
the supporting parent would owe $1,200 in arrears. While some types of
obligations can be modified, there are not many ways for arrears to be
modified. Once they are accrued, arrears are typically not modifiable
by the court. There are two circumstances in which the court can change
the amount owed: when arrears are accrued after the filing of a support
modification request, or by equitable power of the court.
Arrears Accrued After the Filing of a Request for Modification of Support
The court does not have the authority to change the amount of arrearages
accrued before a request for modification of support has been submitted.
If, for example, the supporting party owes $4,000 in arrears prior to
requesting support modification, the arrearage amount would still be $4,000,
but any arrears accrued after the modification request can be eliminated
retroactively. For example, if a supporting parent owes $800 a month in
support payments, and then files a request to modify his or her obligation
to $600 and pays that amount for the next three months, they will find
themselves in arrears for $600. But if the court later grants the modification
request, the court has the power to erase the arrears accrued since the
filing of the request. However, it must be remembered that the court is
not obligated to modify those arrears, even if the support request is
granted. If the supporting party doesn’t meet their payment obligation,
they will risk being in arrears.
The Equitable Power of the Court in Enforcement Actions
Although the court doesn’t have the power to change the actual amount
of arrearages before a modification request, the court has the equitable
power in enforcement actions to determine
what portion of that amount must actually be paid. For instance, if the supporting party owes $4,000 in arrears, and the
party on the receiving end of the support brings an enforcement action,
the court has the authority to determine how much of that $4,000, if any,
should be payable to the supported party. It is important to note, however,
that the court does not have this equitable power in modification proceedings.