Introduction
Under Arizona law, parents have a legal duty to provide “all reasonable support” to their biological and adopted children (ARS 25-501). When parents separate or get divorced, the courts enforce this responsibility with a child support agreement.
Whether the agreement takes the form of a divorce decree or a court order, the agreement is legally binding for both parents. The custodial parent is expected to provide direct support to the child, and the non-custodial parent is required to make predetermined child support payments based on the Arizona Child Support Guidelines.
Just as bills can accrue when you don’t pay them on time, unpaid child support payments will accrue until the debt is paid. As child support agreements are long-term contracts that are intended to last until the child reaches the age of majority, unpaid child support (known as child support arrears) can quickly compound with time and interest. Child support arrears can even continue past the age of majority, so the debt doesn’t necessarily go away when your child turns 18 or graduates high school.
The desire to have child support arrears reduced is certainly understandable, especially if the debt has reached a level that is seemingly insurmountable. However, it’s extremely difficult to reduce or eliminate child support arrears. While the court may be sympathetic to your financial situation, the court’s primary responsibility is to protect the child’s rights and act in his or her best interests. If the custodial parent needs the child support arrears to properly provide for the child, the court is unlikely to approve your petition for a reduction or waiver.
That said, while it’s challenging to reduce or eliminate child support arrears, it’s not impossible. If you are able to reach an agreement with the custodial parent and the state to settle the debt, and if the custodial parent is able to prove that they can provide for the child sufficiently with the settlement value, their income, and your future child support payments, the court may be willing to approve a settlement agreement.
Settling Child Support Arrears
Child support is a state matter, so each state has the discretion to handle child support arrears according to its own laws. In Arizona, the state’s Division of Child Support Enforcement (DCSE) has offered a settlement program to non-custodial parents since 2009. Under the DCSE program, the agency can negotiate directly with the non-custodial parent, though the agency can’t speak for the custodial parent if any child support arrears are due directly to them.
If all parties are able to reach a settlement agreement, the agency will submit the agreement for court approval. Assuming the court approves the agreement, the court will issue a new child support order reflecting the terms of the agreement. The non-custodial parent would continue to pay child support according to the agreement, but the child support arrears would be settled.
Waiving Child Support Arrears
Getting the court to completely waive child support arrears is much more difficult than reaching a settlement, and it’s nigh impossible if the child support is owed to the state (i.e. child support payments are sent to the state collection agency, not directly to the custodial parent). If you owe the state the child support arrears, the DCSE will negotiate a settlement rather than outright waiving the unpaid balance.
If the child support arrears are due to the custodial parent, then he or she has the right to negotiate a waiver of child support arrears. As with the settlement process, both parties will need to reach and sign an agreement, which the court will need to approve. If the court finds sufficient evidence that the custodial parent can adequately provide for the child without the child support arrears, the court may approve the motion and issue a new child support order.
However, the non-custodial parent would still be required to pay child support going forward.
Judicial Investigation
Note that the court has the authority to order a judicial investigation when a parent files a motion to waive child support arrears in conjunction with a settlement agreement. If the judge exercises this option, the court will hire an investigator to assess the parents’ financial circumstances and evaluate whether the settlement is indeed in the child’s best interests. As there are no black-and-white rules for child support arrears settlements, the length and extent of the investigation can vary significantly from case to case.
Modifying a Child Support Agreement
If you have fallen behind on your child support payments due to continuing financial difficulty, you should consider petitioning to modify the child support agreement as you are working to negotiate a settlement. Otherwise, the financial constraints that caused you to fall behind in the first place will likely cause you to fall behind again, and next time around the court may be far less likely to approve a settlement.
Unlike a settlement agreement that requires approval from all interested parties (namely both parents and the state), the non-custodial parent can request that the court modify the child support agreement on their own accord. To do so, you’ll need to file a petition for modification with the court. The clerk will schedule a hearing, and you will be required to serve a copy of the petition and summons to the other parent.
At the hearing, the court will assess whether or not you have experienced “substantial and continuing” circumstances that may warrant lowering your child support obligation (ARS 25-503). While the needs of the child still come first, the court has some leeway at this point to help the parent avoid financial devastation.
There are a number of circumstances that could result in the court modifying the child support agreement, chief among them being job loss, a significant change in income, disability, and the birth or adoption of children.
Keep in mind that even if the court approves your petition for modification of the child support agreement, the modification will have no effect on your child support arrears. To reduce or eliminate that debt, you would still need to reach a settlement agreement and have the agreement approved by the court.
Call the Family Law Team at (480) 467-4348 to discuss your case today.
