If left unpaid, child support debt can grow significantly, quickly, and sometimes quietly. It is especially easy to incur this debt during periods of hardship. A parent who normally pays child support regularly and on time, for example, might let the obligation go during a period of unemployment. A parent who gets incarcerated might stop making payments when his or her work-release request gets denied. Whatever the circumstances of hardship, the child support obligation continues unrelentingly until one parent or the other files a motion with the Court to modify the obligation or until the child legally emancipates. Without payment and without a formal modification authorized by the Court, child support debt will grow with each passing month, especially with interest. It is especially easy to let the obligation go when the parent on the receiving end of child support takes no action toward enforcement for months or years.

Adding to the pressure, because child support is considered an essential tool in reducing poverty and building a healthy economy, many local, state, and federal agencies implement and enforce policies to encourage payment of child support arrears. Such policies may include driver’s license suspension, business and professional license suspension, tax refund interception, property liens, as well as other legal remedies that make can make life more difficult for an obligor. The point of these remedies is to make child support debt a priority to the obligor and get child support paid. If a lost driver’s license means a lost job, however, it can have the opposite affect. Under such circumstances, forgiveness of the child support arrears might be an option one or both parties may seek.

Obtaining forgiveness of child support arrears and interest on arrears is not an easy task in Colorado. Whether it is possible at all or to what degree any forgiveness would apply depends upon the circumstances.

Who Can Forgive Child Support Arrears and Interest?

It should be noted that child support debt may have two different components: child support arrears and child support interest. Child support arrears represents the total amount of child support payments that have come due but remain unpaid. Child support interest is the statutory interest that has accumulated on those arrears over time. In certain ways, Colorado law treats forgiveness of child support interest differently than forgiveness of child support arrears.

Forgiveness of Interest on a Child Support Debt

Colorado law grants the obligee, and only the obligee, express permission to waive interest on child support. This right to waive interest is granted to the obligee via statute: section 14-14-106, C.R.S. Case law has further clarified that not even even the court has the authority to change the rate of interest applied or the amount of child support interest owed, unless the obligee authorizes such waiver. In re Marriage of Tognoni, 313 P.3d 655, 659-60 (Colo. App. 2011).

That stated, a Colorado court does have authority to determine whether an obligee has waived his or her right to collect interest on child support, even over the obligee’s belated objection. In a 2016 Colorado Supreme Court case, Johnson and Johnson, 380 P.3d 150 (Colo. 2016), a Mr. Johnson owed to his ex-wife, Mrs. Johnson, child support arrears in the amount of $54,320. This was the accumulation of approximately fourteen years of unpaid child support, from 1983 when the original child support order was entered until the child emancipated in 1997. Mrs. Johnson took no action for enforcement until 2012, when she finally filed a judgment for the $54,320 in arrears, plus $838,965 in interest. Fortunately for Mr. Johnson, the litigation that followed eventually clarified that his actual arrears amounted to only $4,800, but the question remained as to whether or not Mrs. Johnson had waived her right to the interest on those arrears by not pursuing enforcement for seventeen years.

Delayed enforcement of child support could mean waiver of interest.

The equitable doctrine known as laches can be raised as a defense to deny relief to a party who has unreasonably delayed in enforcing his or her rights to a degree that prejudices the defendant. In the 2016 Johnson case, the Colorado Supreme Court ruled that this defense could not apply to child support arrears, but it could apply to the interest accumulated on such child support arrears. The Court explained, “The prohibition against applying laches to bar collection of the principal amount of child support debt is grounded in the settled principle that child support belongs to children, not their parents.” Johnson, 380 P.3d at 156. Because Colorado law permits an obligee to waive interest on child support debt, however, that right is clearly in the hands of the parent who has a choice to pursue the claim or abandon it. The Court reasoned that permitting a laches defense to interest on child support “would serve the dual purposes of protecting the right of children to parental support and encouraging parents to enforce such child support obligations promptly.” Id.

In summary, if an obligee could have enforced a child support obligation within a reasonable time but instead chose not to pursue enforcement for an unreasonable length of time, and if the delay of enforcement results in prejudice to the obligor, the obligee may be presumed to have waived interest. A court would need to examine all the facts in the situation to make that determination. The law is clear, however, that this waiver by delay applies only to child support interest, not the original child support arrears.

Forgiveness of Child Support Arrears

Although child support payments are owed to the custodial parent, the child is the beneficiary of these payments.

Child support itself cannot be waived or modified except by agreement of the parties in writing and approval by the court. Colorado law and public policy states that the needs of children are of utmost importance and cannot be altered by the parties. In re Marriage of Miller, 790 P.2d 890, 892 (Colo. App. 1990). This policy is codified throughout Colorado’s Child Support Guidelines set forth in section 14-10-115, C.R.S. The parties can negotiate an agreement to deviate from the statutory guidelines, but such agreement would be subject to the court’s review of the agreement’s adequacy and financial disclosures. C.R.S. § 14-10-115(8)(d). In principle, although child support payments are owed to the custodial parent, the child is the beneficiary of these payments; when reviewing an agreement of the parties as to child support, the court must ensure that the child’s need for financial support is addressed. If the parties to a child support action agree to forgive arrears for any reason, it is crucial that the agreement be in writing and explain or show to the court that the child’s needs have been adequately met. Then, before such agreement can be enforceable, it must be submitted to and approved by the Court overseeing the parties’ child support case.