Posted by Nydia Streets of Streets Law in Florida Child Support
How long does a party have to enforce a Florida child support order? The right of child support belongs to a child under the law, so it is difficult to argue that a parent “waived” child support arrears by not pursuing them in a timely manner. However, a defense known as laches could be used to defeat a request to enforce past-due child support that has not been pursued in a reasonable amount of time. This was an issue in the case Alcalde v. Alcalde, 3D20-0998 (Fla. 3d DCA March 9, 2022).
The parties divorced in 2008 and entered a marital settlement agreement. In the agreement, the former husband was to pay $800 per month for child support. The parties’ agreement contained a provision that stated reconciliation or cohabitation would not affect the terms of the agreement. After the divorce, the parties reconciled and moved in together for about six years. Litigation ensued after they separated again, and after a trial in 2017, the parties were granted equal time-sharing with a reservation on delinquent child support. Two years later, the former wife filed a motion for child support, alleging the former husband never paid support. The former husband responded, in part, by asserting the defense of laches. Without holding an evidentiary hearing, the trial court denied the former wife’s motion for child support, holding she waived her claim for the same because she never brought it up in the post-judgment litigation that was concluded in 2017. The former wife appealed.
The appellate court reversed the trial court’s decision, holding “We take issue with the trial court’s order for two reasons. First, the trial court determined that the former wife had waived her claim, not that her claim was barred by laches. These doctrines are not interchangeable. In the child support context, a parent cannot waive the ‘child’s right to support,’ Wilkes v. Wilkes, 768 So. 2d 1150, 1151 (Fla. 2d DCA 2000), but a claim for enforcement may be barred by laches. See, e.g., Dep’t of Revenue ex rel. Brown v. Steinle, 837 So. 2d 1072, 1074 (Fla. 2d DCA 2003). Second, issues relating to the enforcement of child support generally require an evidentiary hearing.”
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