Prior to the January 1, 2003 amendment to California Family Code section 4502, laches (unreasonable delay with undue prejudice) was a defense to the collection of back spousal support and child support. But on January 1, 2003, Family Code section 4502 (c) removed the laches’ defense for backward spousal support and child support. And although the aforementioned section 4502 (c) was subsequently eliminated by the California Legislature, section 291 (d) of the Family Code was enacted as a replacement.
In an enforcement action for child or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any part of the judgment that is owed toward Express, under Section 291 (d) of the Family Code.
Therefore, the alternative defense of exemption pursuant to section 3515 of the California Civil Code may be available to prohibit the collection of arrears of spousal and child support, but is no longer withdrawn.
The delay is not consistent with the intention to enforce the right to assistance:
With the common law Lacha defense to the collection of spousal support removed by the California Legislature, the Laches defense stated in Marriage of Plescia (1997) 59 CA 4th 252, 257-258, 69 CR 2d 120, 123-124, and in In re Marriage of Lamb (2007), 95 Cal. App. 4 ° 653, 115 Cal. Rptr. 2d 787, is no longer a good law.
This leaves the defendant-obligated spouse with the defense of resignation. Waiver has been defined as “the intentional waiver of a known right or such conduct as justifies an inference of the waiver of such right, and may result from an express agreement gold be inferred from circumstances that indicate an intention to resign, “as Panno v. Russo 82 Cal. App. 2d 408, 412, 186 P. 2d 452.
On In re Marriage of Paboojian (1987) 189 Cal. App. 3d 1434, 235 Cal Rptr. 65, the Court of Appeals ruled that: “Although the evidence of an express waiver is equivocal … (the) delay (not demanding court-ordered support for nearly 16 years) in itself is not a defense of the right to enforce the increase in payments under the divorce decree, (citing DiMarco v. DiMarco (1963) 60 Cal. 2d 387, 294, 33 Cal. Rptr. 610), (b) but the delay is so inconsistent with the intent to enforce the right to support that it substantiates the lower court’s decision to waive. “
Acceptance of a lesser amount of support and delay of 4 years without resignation:
However, it has been ruled in Hamer v. Hamer (2000) ___ Cal. App. 4º ___, that “the mere acquiescence in the payment of an amount of child and spousal support less than that provided by a final dissolution judgment (not) is (not) sufficient to constitute a waiver or otherwise to prevent the collection of unpaid amounts “.
On Hamer v. Hamer, on, the Court of Appeals determined that … “it simply cannot be said that the four-year delay in the present case – especially in the absence of an express agreement to waive the collection of the unpaid amount – was” conduct so inconsistent with the intention to enforce the right in question to induce a reasonable belief that it has been waived ‘”, citing Paboojian, on.
Insufficient time lapse in laches and waiver defenses:
As indicated in Paboojian Y Hamer, on, mere delay or passage of time is insufficient to waive or prohibit spousal support. There must be a lack of intention to enforce the right of support, either by express agreement or an influence of circumstances indicating an intention to resign, depending on Graham v. Graham, (1959) 174 Cal. App. 2d 678, citing Panno v. Russo, on.
The same happens in the defense of the eliminated Laches. In fact, laches implies an unreasonable delay that causes undue harm to the party raising the defense of laches, according to Marriage of Plescia, on.
(The author, Roman P. Mosqueda, has practiced family law for more than 20 years in California, New York, and the Philippines. He published a book: Handbook on marriage and its dissolution.)