Modification and Equitable Offset of Child Support

     So here is a question. If you owe child support for a child, and the child come to live with you, do you still owe child support? The short answer is that if a child support order be in place, you will continue to owe ongoing monthly child support and any past-due arrears.

Scary Situation

     Once child support be ordered, it is collectible by any legal means until paid in full, and even death of the person who owes it will not end the obligation (the estate would have to pay).

Family Code §291

     Each unpaid monthly installment accrues interest at the legal rate (currently 10%).

Code of Civil Procedure §685.010 and §685.020 applying to family law actions through
Family Code §210

     Furthermore, with Notice of Delinquency, additional penalties of 6% per month can accrue for up to 12 months on any child support arrears, and once Judgment be entered on such penalties, 10% interest can accrue on the penalties too.

Family Code §§4722, 4728 4733

     Child support is also not dischargeable in bankruptcy.

11 USC §523(a)(5) and (15)

     Failure to pay child support can lead to fines and imprisonment.

See Penal Code §§166 and 166.5, as well as Code of Civil Procedure §§1209, 1209.5, and 1218

     Owing more than $5000 in child support across state lines is a federal felony.

18 USC §228

     You can also have your income tax refunds intercepted, your property liened, your bank accounts levied, and you can even suffer suspension of your passport, driver license, and professional license.

     In short, child support is a serious obligation. If a child for whom you owe support come to live with you, it is wise to take immediate action, as the Court only has jurisdiction to modify child support as of the date you file your request for modification.

Family Code §3603

Some Relief

     So what happens if you don’t seek modification of child support right away? For example, what if your child came to live with you ten years ago, and you never sought modification, and now your are being told you owe ten years of back support? Is there any defense at all? The good news is that there is a thing called equitable offset that might be credited against your child support obligation.

“It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.”

Family Code §4053(i)

     Because of this, a Court can decide that you paid your child support arrears by having the child in your home. In other words, you are not off the hook, but you are deemed to have satisfied your obligation to your child directly rather than by paying the other parent.

Jackson v. Jackson, (1975) 51 Cal.App.3d 363, 364
Marriage of Trainotti, (1989) 212 Cal.App.3d 1072
Helgestad v. Vargas, (2014) 231 Cal.App.4th 719

     That being said, it is preferable that you not place yourself in the position of having to ask the Court for this kind of credit, as it is not guaranteed you will get it, and the consequences can be quite serious.


     Sometimes, after a child support order be entered, the parents get back together, but they never modify the order. Let us say that a reconciliation has happened, and the parents are together for another 10 years, after which one parent leaves and takes the child with that parent. Let us also assume that the parent who left turns around and tries to hit you up for 10 years of back support? Because the child was also living with you, do you have a defense? After all, the other parent was there too.

     The short answer is yes, you have a very good defense, if you can prove that you and the other parent had been living together.

“Unless the order specifies otherwise, an order made pursuant to this chapter [for child support] is not enforceable during any period in which the parties have reconciled and are living together.”

Family Code §3603

     In other words, if you can prove that the two of you were “reconciled and living together,” enforcement of the support order can be “not enforceable” for that period. As you might guess, the other parent might allege that you were under the same roof, but not reconciled, and the other parent might also dispute whether you had been involved with the care of your child. Even though the law can give some protection, it all boils down to proof.

     Presentation of evidence in a way that the Court can legally review is a tricky business. Cases are often lost because the litigant did not know how to present proof in a legally acceptable way. While every person has a right to self-representation, it can be very helpful to have a qualified and experienced attorney helping you through dangerous circumstances, especially when the stakes are so high.