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There are two situations you may find yourself in when it comes to determining whether you are required to pay child support.

The first situation occurs where former spouse purport to agree to waive future child support payments.

The second situation occurs where you may have been told by your ex that she (let’s face it, most child support recipients are women, which is why we’ll use the feminine pronoun) does not need or want child support from you, and so you, in reliance upon that representation, change your lifestyle and spend what would otherwise be child support on other expenses.

Current Child Support Payments

The first situation occurs when you are currently required to make a child custody payment.  Question: Can you and your ex-spouse agree that your child support obligation be waived?

Answer: No.

In Baggs v. Anderson 528 P.2d 141[i], the Utah Supreme Court held that the right to receive support payments belonged to the parties’ minor children and was not subject to being bartered away, estopped, or in any way defeated by the conduct (not even the agreement) of the former spouse or third parties.  What does this mean?  Essentially, you have no right to waive child support through an agreement with your ex because the right to child support does not belong to the ex, it belongs to the child.

Agreements to Pay Child Support Now and Not Later

Question:  But what if you make an agreement that you will “front load” child support by paying it up front in a lump sum or by paying larger than required monthly child support payments up until a certain date, and then the obligation will be terminated?

Answer: No.

In this situation, a Utah court would likely declare—as they have several times in the past—that the parties cannot contract away child support by agreeing to pay the required sum now to eliminate a future obligation.  See Wasescha v. Wasescha, 548 P.2d 895 (Utah 1976) and the cases that follow it.

Many of the courts cite the contract theory of “consideration,” meaning that a contract is only created when two parties trade something of value (money for books, service for food, etc.).  For example, Utah courts conclude that there would be no consideration because one party already has the right to receive child support on behalf of the children now as well as in the future, so there is no “trade” when it comes to “pay now and not later.”  And remember: the courts consistently rule that child support belongs to the children, and cannot be bartered away, even if both parties agree to the elimination of child support at the time.

Collecting Child Support Arrearages: The Doctrine of Estoppel

So at what point might a party not be obligated to pay child support?  Only in the case of arrearages (i.e., payments that are delinquent and not paid, sometimes referred to as “back child support”), and only then in very specific instances.

If:

1.  a child support obligee (“obligee” means the one who is paid child support) has been able to provide in the range of adequately to well for the childr

2.  without receiving child support from the obligor  (“obligor” means the one who is ordered to pay child support); an

3.  the obligee has by her representations and actions led the obligor to conclude

a.  that the obligor need not pay child support;

b.  such that he relies upon the obligee’s representations and subsequently changes his position and relies to his detriment,

then a court might (just might) order that a child support obligee may be equitably estopped from obtaining reimbursement from the obligor.  The court may declare that a party has been “estopped” (that means barred or precluded) from collecting the child support arrearages.  What is the rationale for this?

When the aforementioned elements are met, it is no longer so much about the children receiving support as it is about the parent being reimbursed.  If the court determines that the obligee is seeking reimbursement for child support, and he or she requested or otherwise caused the child support to go unpaid in the first place, the court will be less inclined to find the payor owes on arrears.

For example, say that there is an order that father pay mother child support for a minor child.  Assume that the mother states to the father (and assume that there is no dispute as to this fact) not to pay child support because she doesn’t want it and tells father that she or someone else (such as a grandparent or stepfather) will pay for the support of the child.

Because of the mother’s statements, over the course of five to ten years, and through no fault of his own, the father believes that he need not pay child support.  So he remarries and has three other children with his new wife[ii] believing he was financially able to take on the financial obligations associated with the new children because the mother of his first child told him he need not pay for the support of that child.

If five years later the mother were to demand five years of “unpaid” child support “arrearages,” the court could (note the word is “could” not “must”)[iii] rule in the father’s favor.  His ability to pay child support changed because he took on three new children.  The father’s reasonable belief that he was not obligate to pay arose because of the mother’s representations and statements.  The father relied to his detriment on the mother’s statements, and so she may be estopped from collecting child support arrearages.

Of course, even if a party is unable to collect child past support from the other because of the doctrine of estoppel, that party may still have (and like will have) the right to collect all future child support payments.  Remember, child support cannot be bartered away.  It belongs to the children. So if an obligee demands child support and has a right to said child support, the court will almost certainly rule in the obligee’s favor.

Because child support is so often hotly litigated in the court system, and because there is universal concern for dependent minor children, the standards governing when one is exempt from paying child support are narrow and stringent.  Accordingly, the odds are against anyone who claims to have been released from some or all of his/her child support obligation.   Even if your ex has claimed to not need child support (even if your ex is taking excellent care of the children and does not want or need money), it  may be wise policy to set aside your full child support payment each month anyway.  If your ex comes around later and demands child support, and the court sides with your ex, you will then be prepared for that outcome.

There does come a time when you will no longer have to worry about past child support.  Four years after the child turns eighteen (18) years old, the party petitioning child support will be stopped from recovering the arrears under the Statute of Limitations.  The court will finally have its hands tied.  Take that money you accumulated and pay off some of your own debt, make home improvements, serve a mission, do whatever you couldn’t because this money needed to be set aside.

If you are ordered to pay child support, it is a good policy to  assume that without a court order expressly relieving you of some or all of your child support obligation, you will need to pay child support whether you are jobless, have “an agreement” with your ex-spouse “releasing” you from your obligation, or something else is holding you back from paying.

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