Children Suing for Child Support
In the Ingalls case the defense of concealment failed because it was the son, not the mother, who was suing the father. The Court ruled that the son should not be bound by defenses the father had against the mother, namely hiding the child. The possibility of having both these individuals as plaintiffs against a father is a common theme in the defense cases. Usually, a defense against the mother is not an effective defense against the child.
Waiver as a Defense to the Payment of Child Support in New Mexico
Suppose that the person paying (payor) the support has their job hours reduced and no longer is receiving overtime income from employment. If the payor thinks the Court would reduce his child support obligation because of this, what does he do? If he unilaterally reduces his child support, he can attempt to force the other party to take him to Court at which point he will tell the judge of his strained financial situation. Bad move. The Court will not care. The Court will tell him he should have come back before the Court to have his obligation modified. The fact that the recipient took the reduced amount will not act as defense of “waiver” or “acquiescence.” McCurry v. McCurry, 117 N.M. 294, 871 P.2d 390 (Ct. App. 1994).
The Court will generally treat any agreement that you and the other party with suspicion, and they have no qualms about throwing one of these agreements out. If you and the opposing party have made some type of deal, you need to have the judge sign off on it to make sure it will be followed by the Court. The courts do not like to have their order’s changed without their agreement and signature. While you might think it will save you money in the short run by not using attorneys or going through the Court, as soon as someone gets angry, the deal is thrown out by the Court.
Elements of Waiver Defense
"Relying in part on Williams, Father argues that Mother's acts, together with her failure to expressly allege in her petition that he was delinquent in child support, were sufficient to give rise to an inference that Mother agreed to relinquish her claim for the full amount of child support. However, as observed by our Supreme Court in Brannock, "a valid waiver requires a known legal right, relinquished for consideration, where such legal right is intended for the waiver's sole benefit and does not infringe on the rights of others . . . Father had the burden of proof to show that his unilateral pro rata reductions of child support did not affect the best interests of the other minor children." McCurry v. McCurry, 117 N.M. 294, 871 P.2d 390 (Ct. App. 1994).
- Overview
- Page One - Prepaid Child Support and Visitation's Relation to Child Support
- Page Two - Children Suing for Support and Waiver
- Page Three - Acquiescence to Nonpayment and Joint Support Awards
- Page Four - Equitable Defenses and Miscellaneous Defenses