Posts Tagged ‘verbal contract’

Can I sue for back child support if we just had a verbal agreement?

Sunday, October 23rd, 2011

I found this question in my email this week, and it is one that I get relatively often.

This is not just a question about child support.  It is also a question about whether or not you can enforce the terms of a verbal agreement.

Verbal agreements are valid.  You don’t necessarily need to have a written agreement to do anything, and we do it all the time.  Simple things like ‘I’ll meet you at noon for lunch’ is an agreement.  Or ‘I’ll pay for dinner if you get the tip’ is an agreement.  Most of the time these agreements work just fine and there are no problems.

But what if one party doesn’t do what was agreed?  What if I paid for dinner and you didn’t bring any money for the tip?  Or what if you brought money for the tip, but I didn’t bring enough money for dinner?

The problem is not whether the agreement was valid, the problem is whether or not you can enforce the terms of the agreement.

When you sue someone, you are asking the court to enforce the terms of your agreement.

The problem with verbal agreements is that there are often no other witnesses.  So if and when you go to court to ask the judge to enforce the agreement, the other person can just say that they didn’t make the verbal agreement.  Then it’s your word against theirs and the judge has a hard time finding sufficient evidence to enforce what you assert is an agreement.  Maybe the other person thought that they had only agreed to pay a tip up to one dollar?  Or maybe I agreed to pay for dinner, but only up to $10 and you ordered something much more expensive?  Or maybe I thought that the dinner was going to be that night and you cancelled and wanted to have the agreement reinstated for a dinner two months later?  And what if there was a witness to the agreement, but he is no longer available to testify, or maybe he forgot?  Maybe the other person thought it was a joke?  Or maybe the other person felt that they had to agree or something bad would happen to them?

Without something in writing, it is more difficult to prove the actual terms of the agreement.

Most people go to court to get a child support order.  An order of the court gives you extra power of enforcement because you can now bring a contempt charge if the person refuses to obey an order of the court.  The courts take these very seriously and a non-paying parent can be put in jail.

In the Commonwealth of Virginia, the amount that should be paid for child support is actually located in the Code of Virginia in Section 20-108.2 There are also online resources that can help you to calculate the correct amount of child support such as the Child Support Obligation Calculator on the Department of Social Services website.   The amount in the child support obligation calculator is the amount that the laws of Virginia say should be paid for the support of the child.  The laws of Virginia also allow the parents to agree to a different amount of support, so long as both parents agree that the different amount will be sufficient to pay for the child and that the custodial parent will not need to use government funds to supplement their household income.  The parents cannot agree to a lesser amount of support if the child is going to be eligible for TANF or WIC or any other government funds.  The parents may also agree to a higher amount of support if they wish.

If you are going to do this all on your own without the help of either the court or DCSE, then I suggest that you complete the form online and include a print-out of the calculation with a written agreement that is signed and dated by both parents.  However, I do not recommend doing it yourself.

My advice in these cases is for the parents to go to court to get the order.  It is not expensive, and you don’t necessarily need an attorney.  You can also go to the Department of Social Services, Division of Child Support Enforcement to file the paperwork and you may not need to go to court at all.

As long as both sides to an agreement do what they are supposed to do, there is never a problem.  But if one side does not perform as they agreed, it is much easier to enforce the agreement if there is a court order, or at least some writing as proof of the agreement.

In my experience, there is seldom a writing as a back-up to a verbal agreement to pay child support.  Also, a verbal agreement to pay child support is seldom enforced by the courts because there is just not sufficient evidence to prove that the agreement ever existed.  What usually happens is that the court will order support to be paid from the date of the petition for the court hearing until the child reaches the age of maturity, but there is seldom an award for ‘back’ child support because there really isn’t any provable ‘back’ support due.