Can Child Support Arrears Be Forgiven in California?

2 days ago

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In most cases, no. A California judge cannot forgive, reduce, or erase child support that came due before a request to change the order was filed. Family Code section 3651 bars retroactive modification of past-due support, and interest at 10 percent per year keeps accruing until the balance is paid. There are, however, real exceptions and real strategies. Arrears owed to the state can be compromised through a formal program, the other parent can agree to settle arrears owed directly to them, support that accrued during a long incarceration may be suspended, and orders entered by default on made-up income can sometimes be set aside. This article explains what is possible, what is not, and how the courts in Riverside, San Bernardino, and Los Angeles County actually handle these requests.

Why California Courts Cannot Retroactively Reduce Child Support

The rule that stops most arrears forgiveness is Family Code section 3651, which provides that a support order may be modified or terminated only as to amounts that accrue after the date a request to modify was filed. Family Code section 3653 reinforces the rule by making a modification retroactive, at most, to the date the notice of motion or order to show cause was filed and served. Every month that passes before you file is a month that becomes a fixed, enforceable judgment.

The Court of Appeal applied this rule strictly in In re Marriage of Tavares (2007) 151 Cal.App.4th 620, holding that a trial court has no equitable power to retroactively reduce accrued support even when the payor's circumstances had clearly changed. Judges at the Riverside Family Law Courthouse and the Stanley Mosk Courthouse in Los Angeles hear the same story constantly: the parent lost a job, the children moved in with the payor, or the parties agreed informally to a lower amount, and nobody filed anything. The court cannot fix that after the fact, no matter how sympathetic the facts.

Does Interest Keep Growing on Child Support Arrears?

Yes, and it is the reason arrears balances become so large. Unpaid support is a money judgment, and Code of Civil Procedure section 685.010 sets the interest rate on judgments at 10 percent per year, simple interest. Family Code section 4502 provides that a child support judgment is enforceable until paid in full and is exempt from the renewal requirements that apply to other civil judgments, so there is no statute of limitations that lets old support quietly disappear.

Courts have held that interest on support arrears is mandatory rather than discretionary. In In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, the Court of Appeal ruled that a trial court lacks authority to waive accrued interest on child support arrears. A parent in Moreno Valley or Fontana who owes $30,000 in principal can easily owe $50,000 or more once interest is added. Under Code of Civil Procedure section 695.221, payments are applied first to the current month's support, then to the principal of the arrears, and only then to interest, so the interest portion is the last part of the debt to go away.

Can the Other Parent Agree to Waive Arrears?

This is the most practical path when the arrears are owed directly to the other parent rather than to the state. The parent who is owed the money can agree to accept less than the full amount in a written stipulation, and courts routinely approve those agreements when the arrears are not assigned to the county. Common structures include a lump-sum payment in exchange for a release of the balance, a payment plan with a reduction at the end if every payment is made on time, or a trade in which the paying parent takes on an expense such as private school tuition or a car for the child.

There are limits. The court will not enforce an agreement that shortchanges the child going forward, and any waiver must be presented to the court as a stipulation and order rather than a side deal. If the family ever received public assistance, the portion of arrears assigned to the county belongs to the state and the other parent cannot waive it. Before signing anything, get an accounting from the local child support agency or the county's support enforcement records so you know exactly how much is owed to the parent and how much is owed to the government.

The California Compromise of Arrears Program for State-Owed Debt

When a custodial parent received CalWORKs or other public assistance, the support that accrued during that period is assigned to the state, and the state collects it through the Department of Child Support Services. Family Code section 17560 authorizes the department to compromise those state-owed arrears through what is known as the Compromise of Arrears Program, or COAP. Under that program, a parent who cannot realistically pay the full balance can apply to settle the state's share for less, typically through a lump sum or a structured plan.

Eligibility depends on the parent's income, assets, and ability to pay, and the parent generally must be current on ongoing support. The application is submitted to the local child support agency, not the family court, and the Riverside County and San Bernardino County Department of Child Support Services offices handle these requests for Inland Empire parents. COAP does not touch arrears owed directly to the other parent, so a parent with a mixed balance may need both a COAP application and a separate agreement with the custodial parent to resolve everything.

Suspension of Support During Incarceration

Family Code section 4007.5 addresses a situation that historically created enormous arrears balances. When a parent ordered to pay support is incarcerated or involuntarily institutionalized for more than 90 consecutive days, the support obligation is suspended by operation of law for that period unless the parent has the means to pay or was incarcerated for domestic violence against the supported party or child, or for failing to pay support. The obligation resumes on the first day of the first full month after release.

The suspension is not automatic in practice. The parent must notify the local child support agency or file a request with the court, and the agency or court then adjusts the arrears to reflect the suspended period. Parents who served time and then discovered a five-figure balance when they got out should raise this section immediately, because it can eliminate a large portion of the debt. The statute has been amended more than once, so confirm which version applies to the period of incarceration.

Setting Aside a Support Order Based on Presumed Income

Many large arrears balances trace back to a default order. When a local child support agency opened a case and the parent did not respond, the court may have set support based on presumed income, meaning an assumption about what the parent could earn rather than what the parent actually earned. Family Code section 17432 allows a parent to ask the court to set aside a default support order that was based on presumed income, and the resulting new order can be retroactive to the date of the original order in appropriate cases. Time limits apply, so this needs to be evaluated quickly.

Separately, Family Code section 3690 through Family Code section 3693 allow a court to set aside a support order obtained through actual fraud, perjury, or lack of notice, again subject to strict deadlines measured from when the moving party discovered the problem. These set-aside provisions are the narrow exception to the no-retroactive-modification rule, and they are the tool for a parent who never knew a case was pending, was served at a wrong address, or was ordered to pay support based on income figures the other side knew were false.

How to Stop Arrears From Growing Right Now

Because the retroactivity rule in Family Code section 3651 turns on the filing date, the single most important step is to file a Request for Order on form FL-300 the moment your income drops, your custody time increases, or another change of circumstances occurs. Attach a current Income and Expense Declaration on form FL-150 with your last two months of pay stubs, and serve the other parent promptly using form FL-330 or form FL-335. Once the request is on file, the court can make any modification retroactive to that date under Family Code section 3653 even if the hearing is months away.

Riverside and San Bernardino County courts set support modification hearings several weeks to a few months out, so parents in Corona, Temecula, Rancho Cucamonga, and Ontario should not wait for the hearing to lock in the filing date. If a local child support agency is involved, you can also ask the agency to review the order for modification, but a request to the agency does not stop the clock the way a filed FL-300 does unless the agency itself files a motion. When in doubt, file.

Credits That Reduce the Balance

Several credits can lower a stated arrears figure without any forgiveness at all. Family Code section 4504 requires the court to credit derivative Social Security benefits paid to a child because of the paying parent's retirement or disability against that parent's support obligation. Direct payments made to the other parent, if documented, should be credited even when they did not go through the state disbursement unit, though proving them is the payor's burden. Periods when the child lived full-time with the paying parent can support a credit in some circumstances, though courts treat these claims cautiously.

An accounting dispute is resolved through a motion to determine arrears, in which the court reviews the payment history and fixes the amount owed. Bring bank records, canceled checks, receipts, and the agency's payment ledger. Judges in Los Angeles County and the Inland Empire routinely reduce inflated arrears balances when the payor shows verified payments the ledger missed, and this review is often the fastest way to shrink a balance that looks impossible.

Enforcement Tools the Other Parent Can Use

Understanding the enforcement side explains why settlement is often the best option. Family Code section 5230 allows an income withholding order on form FL-195 to be served on the payor's employer, and the state disbursement unit collects directly from wages. The local child support agency can intercept tax refunds, place liens on real property, report the debt to credit bureaus, and, under Family Code section 17520, suspend or refuse to renew a driver's license and professional licenses when the parent is more than 30 days behind.

The other parent can also file for contempt. Under Code of Civil Procedure section 1218, each missed payment can be charged as a separate count, and a finding of contempt can carry jail time and community service. The contempt petition is filed on form FL-410, with the facts stated on form FL-411, and it must be filed within the three-year limitations period in Code of Civil Procedure section 1218.5. The California Supreme Court held in Moss v. Superior Court (1998) 17 Cal.4th 396 that a parent who has the ability to work but chooses not to can be held in contempt for failing to pay support, so unemployment alone is not a defense.

Bankruptcy Does Not Discharge Child Support

Parents sometimes hope a bankruptcy filing will erase support arrears. It will not. Child support is a domestic support obligation and is not dischargeable in Chapter 7 or Chapter 13 bankruptcy, and the automatic stay does not stop the collection of support from income that is not part of the bankruptcy estate. A Chapter 13 plan can spread the payment of arrears over three to five years, which sometimes provides breathing room, but the debt survives the case.

Getting Help With Child Support Arrears

Gramling Law Group helps parents in the Inland Empire, Los Angeles County, Orange County, and throughout Southern California reduce arrears balances through accountings, negotiated settlements, Compromise of Arrears applications, incarceration credits, set-aside motions, and prompt modification filings. We offer flat-fee and limited-scope options so you can get help with a single motion or a full arrears strategy without an open-ended retainer. Call (909) 654-4575 or contact us through this website for a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.

Frequently Asked Questions About Child Support Arrears in California

Can a judge forgive back child support in California?

Generally no. Family Code section 3651 prevents a court from modifying support that accrued before a request to modify was filed, and In re Marriage of Tavares (2007) 151 Cal.App.4th 620 confirmed that courts have no equitable power to reduce accrued arrears. The exceptions are set-aside motions for fraud, perjury, lack of notice, or presumed-income defaults, and the incarceration suspension in Family Code section 4007.5.

Can the other parent waive child support arrears?

Arrears owed directly to the other parent can be settled by a written stipulation that the court approves. Arrears assigned to the state because the family received public assistance cannot be waived by the other parent and must be addressed through the Compromise of Arrears Program under Family Code section 17560.

What is the interest rate on child support arrears in California?

Unpaid support accrues simple interest at 10 percent per year under Code of Civil Procedure section 685.010. Courts have held the interest is mandatory, and under Code of Civil Procedure section 695.221 payments go to current support and principal before interest, so the interest is the last part of the balance to be paid.

Is there a statute of limitations on child support arrears in California?

No. Family Code section 4502 makes a support judgment enforceable until paid in full and exempts it from the renewal rules that apply to other judgments. Contempt, however, must be filed within three years of each missed payment under Code of Civil Procedure section 1218.5.

What happens to child support if I go to prison?

Under Family Code section 4007.5, support is suspended for periods of incarceration or involuntary institutionalization longer than 90 consecutive days, unless the parent has the means to pay or was incarcerated for domestic violence against the other party or child or for nonpayment of support. The parent must notify the agency or court so the arrears can be adjusted.

How do I stop child support arrears from growing?

File a Request for Order on form FL-300 with a current FL-150 as soon as your circumstances change. Under Family Code section 3653, a modification can be retroactive to the filing date, so the filing date, not the hearing date, is what stops new arrears from accruing under the old order.

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