Q. My ex-wife filed a motion claiming I owe her $75,000, plus interest, for child and spousal support that I paid years ago. Our kids are grown and married. She remarried six years ago. I've moved three times since and lost my old bank records, and at times I paid her in cash. What should I do?
Ned, Indio, CA
A. Ned, we recently saw this with a gentleman who is now 70 years old, with a wife he had divorced 20 years ago. She filed a motion asking for $180,000, and sought to execute against his pension plan. He swears he paid her, but he has no proof. Here are some thoughts:
- Support orders never die, in the sense that there is no requirement - as there is with other non-support civil money judgments - to renew a California judgment every 10 years. Family Code section 291(a) provides: "A money judgment or judgment for possession or sale of property that is made or entered under this code, including a judgment for child, family, or spousal support, is enforceable until paid in full or otherwise satisfied." [Italics added]. Hence, there is no statute of limitations that applies as a defense to paying arrears.
- Never, ever, pay your [former] spouse, or the other parent, with cash. Likewise, never pay third parties on their behalf if you expect an off-set from some monthly support order. You may think that your former intimate partner will be honest and never pretend you didn't pay, and many won't make false claims. But you may be screwed if they do, or if over time they become hostile to you or financially desperate.
- Per Family Code section 155, interest on unpaid support accrues at 10 percent per annum, from the due date of each payment (whether on the 1st of the month, or the 1st and 15th). Good luck finding any other kind of debt instrument that gives that rate of return these days! Since the legislature made no changes to the California judgment rate of interest during the Great recession, this creates an incentive for people to sit on these claims and let them accrue. At ten percent, principal doubles every seven years!
- Always keep records of payment! The very best practice is to try to get the support recipient to sign a Stipulation acknowledging that all support obligations were satisfied before you make your final payment, and to file it with the Court in your proceedings. Of course, no one does that and lawyers rarely think to mention it when the case concludes. Another option would be to get the recipient to acknowledge in some form of writing that you are paid up, and put that in a safe deposit box. Purging emails is always a bad idea because you lose what over conversation evidence you might have accumulated. You could file a motion at the time your support obligations end seeking a Court determination that you owe no arrears. Heck, if you had a piece of paper signed by her or from her that you think you could lose over time, you can slap it onto a declaration page and file it so that it is in the record.
- Don't expect that you can go back to your bank at some later date and get copies of your old statements and/or canceled checks. Not only do these records seem to disappear after relatively brief periods of years, if banks merge or go under, you will never recover them. This is one of the biggest evidence problems we see in lengthy marriage dissolutions, where it is also not uncommon for one spouse to take, conceal, or destroy important documents around the time of separating.
- If you fail to keep the proof that you paid the support order, the only defense is to convince the Court that you did, in fact, pay her through testimony without documentation. Her sitting on the claim for years is evidence consistent with her having been paid. But the Court may view this is as a liar's contest and it is difficult to give any reliable prediction of what a judge might do since each case turns on its own facts. Possibly you have witnesses who could confirm that you made regular payments.
- Keep in mind that in almost all ways, the defense of "laches" - that as basic fairness a person should not be able to just sit on their claims to the detriment of the other parties - does not apply to child and spousal support awards.
- Finally, and sadly, you could offer her something to "go away" that would avoid the greater risk and associated attorney fees if the full amount is found due. Keep in mind that there is a lower echelon of support collections specialists who make their living handling these sorts of claims - usually on a contingency fee basis. This is particularly true in Native American Indian cases. Because they get to pocket 40 or 50% of what they collect for their client, they are usually eager to settle. They also tend to over-reach.
The Best Practice is to Get a Stipulation or Anything in Writing From the Other
Person When Your Support Obligations End, and File that With the Court!
If an agreement cannot be reached (and if it is, in writing!), then you have no choice but to oppose her motion to determine arrears, file your own motion to fix arrears, or seek to set aside any support judgment if she enters one against you if you weren't really served and so failed to appear and defend yourself. But whatever you do, don't sit on this situation.
You are going to need a lawyer for this one.
Author: Thurman W. Arnold
