Articles & News
Factors to Consider before Renewing a Family Law Judgment
A POTENTIAL CLIENT SAYS, “I got this judgment in my dissolution of marriage for child support, spousal support, and property division, and the bum who has the money has not paid me.” The attorney asks, “When was the judgment entered?” The client answers, “It was either 9 or a little over 10 years, I’m not sure. I am so upset I couldn’t bear to look at the judgment. I want not only the money owed but compound interest for all the aggravation I’ve endured.” What should the attorney tell the potential client, and what authority supports the answer?
The place to start is the question of whether it is necessary to renew a family law judgment in California. Section 4502 of the Family Code holds that the “period for enforcement and procedure for renewal of a judgment or order for child, family, or spousal support is governed by Section 291.” That section provides that a money judgment, judgment for possession or sale of property, or a judgment for child, family, or spousal support is exempt from the renewal requirements for other judgments. Also, a judgment that provides for the possession or sale of property is likewise exempt from the renewal requirement. Other judgments – for example, civil money judgments – are only good for a 10-year period and must be renewed within that period (see Code Civil Procedure § 683.020.)
Section 291 covers any judgment entered in dissolution of marriage. Even if the judgment contains an equalization payment, there would be no legal requirement to renew the judgment. However, attorneys should be aware that the portion of a judgment that requires division of personal property is not covered by Section 291. If part of the judgment requires one party to give personal property to the other, an attorney for the other party should make sure to renew the judgment before 10 years passes from the date of entry if there are problems with compliance. No exemption from the renewal requirement exists for other civil judgments, so the 10-year rule for renewal is still in effect for them.
The key factor that distinguishes a family law judgment and another civil judgment is that the family law judgment stems from a dissolution of marriage or legal separation proceeding. These judgments often contain provisions dividing property, providing for custody and visitation of minor children, and for spousal and child support. Because a family law matter deals with such intimate issues there is often a lot of emotion embodied in a family law judgment.
In most other respects a family law judgment is just as enforceable as any other; however, certain aspects of collecting some types of family law judgments and orders are different. For example, a judgment for child support or spousal support can have priority over other types of judgments when it comes to garnishing wages. Additionally, the amount of support a creditor is entitled to garish is up to 50 percent of the debtor’s net earnings, while any other judgment creditor is only entitled to garnish up to 25 percent of a debtor’s net earnings (see Code Civil Procedure §§ 706.050, 706.023.) It is also interesting to note that the Family Code provides that laches is only a defense to enforcement of child, spousal, or family support to any portion of the judgment owed to the state (Family Code § 219(d).) If a party owes the state reimbursement for public assistance, the state can be barred from attempting to collect that money from the obligor. On the other hand, a former spouse is never barred from collecting spousal, child, or family support based on laches. Child support is collectable even when the child or children are over the age of majority.
The only purpose of renewing a family law judgment (other than one requiring distribution of personal property) would be to try to compound the interest accruing on money owed. When an application for renewal of judgment is filed, one of the items to complete on the application for renewal of judgment form (Judicial Council Form EJ-190) is the amount of accrued interest. Once the judgment is renewed, the amount due is the total judgment plus all accrued interest. The renewal judgment will then begin to accrue interest once again at the legal rate of 10 percent, as set forth in Section 685.010 of the Code of Civil Procedure. With a renewed judgment, the principal and accrued interest can be included, so the renewed judgment has the effect of increasing the original judgment, which itself will accrue 10 percent on the total of principal and accrued interest. It is not exactly the same as compounding the interest for each year, but a little compound interest is better than none.
Currently the cost to renew a judgment is $30. The time involved in completing the necessary form and calculating the accrued interest is not minimal, but it is also not cost prohibitive. An attorney could also compare the potential benefit of adding the interest on the outstanding judgment to the cost to the client as measured by the amount of time that the attorney needs to complete the renewal. Attorneys should be careful, however, about a client’s expectations of recovery when the debtor is insolvent or practiced at avoiding debts. It may not be a good idea to increase the amount owed, and thereby increase a client’s hopes of getting money, when collection of even the principle is not likely.
click here to return to articles page