This is a common question in the child support world. Can a custodial parent waive child support arrears? Generally, there are a few factors you need to consider. Most of the time, a Court will review these matters on a case by case basis. But, it doesn’t hurt to have some knowledge beforehand.
Once a Court sets an order to pay child support, that obligation is due on a monthly basis until the child emancipates. Emancipation laws vary by state. If you live in New Mexico, you will pay child support until the child turns eighteen, unless they are still in high school.
If you fall behind on the obligation in any month, the unpaid amounts are still due. Child support arrears are the accumulation of past, unpaid child support payments.
This article focuses on the issues surrounding waiver of child support arrears.
New Mexico law on waiver of child support
In New Mexico, there are no statutes that directly relate to waiver of child support. So, waiver is governed by case law.
Generally, custodial parents can make waivers of child support arrears owed to them. One of the seminal cases on waiver in New Mexico is Brannock v. Brannock. Now, I know you didn’t come here for a case law lesson, so I’ll highlight the most important sentence regarding waiver below.
“[A] valid waiver of child support arrearages can be made by the person who provided the children with support, but only where there is evidence of consideration for such waiver and where such waiver does not infringe upon the rights of others.”Brannock v. Brannock, 104 N.M. 385, 386, 722 P.2d 636, 637 (1986).
So, custodial parents can waive child support arrears, but they should be accompanied by consideration and should not infringe on the rights of others.
Valid consideration and child support waiver
In child support terms, consideration is a type of payment, act, or compensation by the noncustodial party. Most of the time, this means an exchange of something with financial value.
Let’s say your child is in high school and needs a car. This is a common scenario, right? The noncustodial party buys a $5,000 car so the child can drive to school. This would be valid consideration for a waiver of child support arrears in the amount of $5,000.
As children get older, you may be providing other items of financial necessity that are not in the child support worksheet. Who pays for the child’s car insurance? A sixteen year old’s car insurance will cost more than an adult’s. What about the teen’s cell phone bill? These are just some factors to consider when you waive child support arrears.
Infringement on the rights of others
When the Court talks about infringing upon the rights of others, the Court is referring to the child. The Court’s standard of review is always going to be “the best interests of the child”.
So, how is waiving $10,000 of child support, without consideration, in the best interests of your minor child? That’s the question you might get in Court if you decide to waive a large amount of child support arrears without due consideration.
If you are thinking about waiving your child support arrears, think about how it might affect your child or their financial interests.
Child support waiver and emancipation of child
What if your child has turned eighteen, graduated high school, and is no longer living with the custodial parent? Technically, the standard of review is still ‘best interests of the child.’ But a Court may be more willing to accept a waiver of arrears if there’s not a present need for child support.
Once a child emancipates, most parents don’t want to continue dealing with child support and going to court. These cases can get mentally and emotionally exhausting. This is especially true if the case has been open for most of the child’s life.
Many parents opt to ‘settle’ the case by exchanging a lump sum for waiver of the remaining child support arrears. For example, you owe $15,000 in child support and the other parent agrees to accept $10,000 to settle the matter. This is an agreement you can present to the Court.
I have seen individuals take loans out of their 401ks to settle child support arrears and say goodbye to their court case.
Child support arrears, principal versus interest
Sometimes, you have to break down the child support arrears to get a better picture of your debt. Is your balance principal only? Or do you have a lot of interest stacked on the principal? If you have a case through a child support agency, request an audit to figure this out.
In most states, orders that establish ongoing child support will include statutory interest rates for unpaid support. In New Mexico, the interest rate on unpaid child support is 4%. If you owe child support in California, it’s a whopping 10% interest. On the other hand, Colorado doesn’t charge interest on child support at all.
If you have paid down a large portion of your principal balance, the Court might be more willing to allow a waiver with less consideration if the balance is mostly interest. I do see cases from time to time that have a low principal balance, but thousands of dollars in interest. So, it is important to figure out the breakdown of your child support arrears.
Assigned child support arrears
In some cases, if the noncustodial party was not paying child support and the custodial party sought temporary financial assistance through the state, then part of the arrears may be assigned to the state.
The state does try to recoup the financial assistance through child support. This is usually done through a state’s human services department.
If you do owe child support arrears to the state, that’s not necessarily bad. Most state agencies will have arrears management programs where you can offer a lump sum to settle the entire debt. It’s important to ask about your options when you have a debt owed to the state.
Waive child support arrears and court proceedings
The Court usually requires a waiver of arrears to be done under oath and on the record.
Why? There is case law in New Mexico that requires a waiver of child support be made knowingly, willingly, and voluntarily. When you waive child support arrears, the Court will want to make sure that you are doing it with clear intention and good faith.
It’s also a good practice to get these waiver agreements on the record and documented in an order. Without these safeguards, a party can back out of the agreement if they change their mind.
Yes, a custodial parent can waive child support arrears. But there are some factors that should be considered before proceeding to waive child support arrears in Court.
Disclaimer: This article is not intended to provide legal advice or suggest a guaranteed outcome as individual situations may vary.