There is a strong public policy in California courts favoring settlement of disputes over litigation. However, when it comes to settlements of child support, very strict requirements must be satisfied before the court will enforce out-of-court agreements.
Parties to contested family law matters involving child support often reach agreements out of court. When such agreements are formalized in a written agreement, filed with the court and accepted by the Court, the agreement becomes an enforceable order. Oral agreements for child support are not enforceable unless recited on the record in open court. Written agreements may be entered as an order if certain requirements are met.
California utilizes a statewide uniform guideline for calculating child support. This formula is presumptively correct. Parties may agree to a non-guideline child support order pursuant to Family Code §4065 if all of the following declarations are stated in the signed agreement:
(1) The parties are fully informed of their rights concerning child support;
(2) The order is being agreed to without coercion or duress;
(3) The agreement is in the best interest of the children involved;
(4) The needs of the children will be adequately met by the stipulate amount; and
(5) The right to support has not been assigned to the county pursuant to Section 11477 of the Welfare and Institutions Code and no public assistance application is pending.
Furthermore, when the stipulated agreement to child support is below the amount established by the statewide uniform guideline, no change of circumstances need be demonstrated to obtain a modification of the child support order.
A signed written agreement which was not filed with the Court, can later be entered as an order pursuant to Code of Civil Procedure Section 664.6 which provides:
If parties to a pending litigation stipulate in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case,…the court, upon motion, may enter judgment pursuant to the terms of the settlement.
Even when parties reach an oral agreement to modify a child support order, and the party receiving support accepts the modified amount of support, the most recent court-order for child support remains enforceable. Marriage of Hammer (2000) held that mere acquiescence in the payment of an amount of child support less than that provided by a final dissolution judgment is not sufficient to constitute a waiver or otherwise to bar collection of the unpaid amounts. As such, upon request of a party, the Court will enter an order for arrears of any unpaid amount of child support due plus interest at the statutory rate (10 percent per annum). The court does not have discretion to waive interest nor to use the Court’s equitable powers to retroactively modify the order.
One exception to the above strict enforcement of child support orders applies to the limited situation where the payor of support assumes custody of the minor children with consent of the other parent. Even under such circumstances, the court does not have discretion to retroactively modify the orders, but has the equitable power to not enforce the arrears. (Jackson v. Jackson and Marriage of Trainotti). This is because the payor parent has been discharged of his/her duty to pay child support for the period when that parent has assumed full custody and care of the child.
In short, all agreements for child support must be filed with court and comply with the requirements of Family Code Section 4065 to be an enforceable order.