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 spousal support and child support. But on January 1, 2003, Family Code section 4502(c) eliminated the laches’ defense to back spousal support and child support. And while the aforementioned section 4502(c) was later struck down by the California Legislature, Family Code section 291(d) was enacted as a replacement.

In an action for enforcement of judgment for child or spousal support, the defendant may oppose, and the court may consider, the defense of laches only with respect to any part of the judgment that is due towards conditionunder Family Code Section 291(d).

Therefore, the alternative defense of waiver under California Civil Code section 3515 may be available to prohibit the collection of spousal and child support arrears, but no longer laches.

Delay inconsistent with intent to enforce right to support:

With the laches defense of common law for the collection of spousal support eliminated by the California Legislature, the laches defense set forth in Plescia’s marriage (1997) 59 CA 4th 252, 257-258, 69 CR 2d 120, 123-124, and in In re Marriage of Lamb (2007), 95cal. app. 4th 653, 115 cal. Rptr. 2d 787, is no longer good law.

This leaves the defendant-debtor spouse with the waiver defense. Waiver has been defined as “the intentional waiver of a known right or such ride that merits an inference of the waiver of such right, and may result from an express agreement Prayed be inferred from the circumstances indicating the intention to resign,” according to Panno v. Russian 82 cal. app. 2d 408, 412, 186 P. 2d 452.

In In re Marriage by Paboojian (1987) 189cal. app. 3d 1434, 235 Cal Rpt. 65, the Court of Appeals ruled that: “although the evidence of an express waiver is equivocal… (the) delay (the lack of demand for court-ordered child support for almost 16 years) in itself is not a defense of the right to enforce increased payments under the divorce decree, (citing DiMarco v. dimarco (1963) 60cal. 2d 387, 294, 33 cal. Rptr. 610), (b) but the delay is so inconsistent with the intent to assert the right to support that it substantiates the trial court’s decision for a waiver.”

Acceptance of a lesser amount of support and delay of 4 years without exemption:

However, it has been ruled hammer v. Hammer (2000) ___cal. app. 4th ___, that “mere acquiescence in paying an amount of child and spousal support less than that provided by a final dissolution judgment (is not) sufficient to constitute a waiver or prohibit collection of unpaid amounts” .

In hammer v. Hammer, upthe Court of Appeals found 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 collection of the unpaid amount – was” ‘conduct so inconsistent with intent to assert the right in question to induce a reasonable belief that it has been waived,'” citing paboojian, up.

The passage of time is not enough in laches and waiver defenses:

As indicated in paboojian Y Hammer, up, the mere delay or passage of time is not enough to waive or prohibit spousal support. There must be a lack of intention to assert the right to aid, either by express agreement or an influence of circumstances indicating an intention to renounce, for Graham v. graham, (1959) 174cal. app. 2d 678, quote Panno v. Russian, up.

The same is true in the defense of eliminated laches. In fact, laches implies an unreasonable delay that causes undue prejudice to the party presenting the laches defense, according to Plescia’s marriage, up.

(The author, Roman P. Mosqueda, has practiced family law for over 20 years in California, New York, and the Philippines. He published a book: Manual of marriage and its dissolution.)