Served with a Motion to Determine Arrears in Irvine?

Posted on 02/08/17 Orange County,Uncategorized

I have been served with an “RFO” to Determine Child and/or Spousal Support Arrears, and now I have to go to court. Now what?

By Brian Mullen, Esq.

oc-headerYour task is to reduce the amount of arrears claimed by your ex. But how?

Let’s assume for the sake of this discussion that the support orders are valid (i.e., no fraud or notice issues are in play), and now you need to file a Responsive Declaration for the upcoming hearing. In Orange County, Responsive Declarations are required to be filed and personally served at least 9 court days before the hearing date. Your Responsive Declaration will tell the Court how much you think you owe and why. If your ex has not opened a case through DCSS, then the hearing will take place with your regularly assigned family law judge. If DCSS is involved, then the hearing will be held before one of the child support commissioners on the 5th Floor of Lamoreaux Justice Center.

Did you satisfy the arrears through payments that were not credited to you?

As part of the RFO, the moving party will usually have completed a chart showing the amount of the order, the sum paid by the responding party and the total arrears due. Under California law interest at the rate of 10 percent per annum is added to any support arrearage.

The best way to defeat a support arrears motion is to show that you have complied with the order because you can prove that you paid in full.  In many cases the moving party will not credit the other party with all of the payments made. However, it is not enough to appear in court and testify that you complied in full with the order. You will end up in a “he said, she said” battle with the other party, which usually results in the Court declining to award credit for the disputed payment.  Bank records are helpful to prove that you paid any amount in dispute. If you have cancelled checks with the other party’s signature, you will improve your chances of convincing the court you paid. Even better, you have written something like “February child support payment” in the memo line of each check. This will combat the argument that the money was paid for a purpose besides support, such as a community debt.

Was there a change in custody since the last child support order?

California law recognizes Jackson credits in child support arrears cases for those parents who assume custody of a child, but who subsequently fail to file a motion to modify child support. The rationale is that the parent who was ordered to pay support is fulfilling his or her duty to pay support by providing a primary residence for the child. If you meet this description you can seek credit for support due during those months where you assumed custody, up to the amount of the monthly support order.

In a 2014 Orange County case called Helgestad v. Vargas (2014) 231 Cal.App.4th 719, for the first time the Court held that Jackson credits may be awarded even if a complete change of custody did not occur. The case left open the possibility of awarding Jackson credits for parents who increased their visitation to 50% or more.

Here’s how a Jackson credit scenario plays out: Let’s say the current orders Child was living with Mother 90% of the time and Father 10% of the time, and Father was ordered to pay $1,000 per month in child support to Mother.  A year after the current custody orders went into effect, the Child began residing with Father 75% of the time. Father then ceased paying Mother child support. Father did not file an RFO to modify child support, but Mother seeks child support arrears even for the time period Child resided with Father 75% of the time. As an offset to his child support arrears, Father will request Jackson credits for up to $1,000 per month during the time period in which Child primarily lived with him.

The Court will receive evidence on the request for Jackson credits at the hearing. Subpoenaed bank and school records may prove that the child was living with you a majority of the time and that you were paying as much as the order required, albeit not to your ex. In some cases, litigants have called the child in question to testify as to who he or she lived with at a given time. The request for Jackson credits should be raised in the Responsive Declaration to the RFO and argued at the time of the arrears hearing so the issue is not waived. If you do not have all the evidence you need, the Court may allow for a continuance or postponement of the hearing so that you have more time.

What if you still owe an arrearage after all of this?

If you have the means to make a lump sum payment in lieu of paying the total arrears, you may propose an “offer and compromise” to cancel out the remaining arrears upon payment of the lump sum. Alternatively, you may be able to negotiate a reasonable payment schedule with your ex. If DCSS is involved, the agency will need to sign off on any agreements made between you and your ex regarding support arrears.

If you are unable to strike a deal with your ex, at the hearing the Court will set a monthly payment based on your ability to pay. Prior to the hearing, you will need to file an Income and Expense Declaration which accurately states your monthly income and expenses. Once the Court decides your net monthly income available to pay the arrearage, you will be ordered to pay until the debt is satisfied.

Orange County family law courts are charged with the task of enforcing support obligations. However, if you have the proper records and convey your credibility to the Court, you will help yourself immensely.

For our guide to post-judgment modification and enforcement matters, click here.