Court of Appeals Recognizes Unreasonable Delay as a Defense to Spousal Support Collection Efforts 11:22, March 1, 2018

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Court of Appeals Recognizes Unreasonable Delay as a Defense to Spousal Support Collection Efforts

In 2017, the Colorado Court of Appeals recognized, for the first time,  that “laches” may be raised as a defense to the collection of unpaid spousal support.  Laches is a defense that may be raised when one who has a claim delays unreasonably in the pursuing the claim and the defendant is prejudiced by the delay.

In re Marriage of Kann, 2017 COA 94involved a husband who was ordered to pay spousal support but never made the payments.  His former wife took no action to collect for 26 years.  After that time, the former wife retained counsel and sought to collect nearly $300,000 in unpaid support and nearly $250,000 in interest on that unpaid support. The issue before the Court of Appeals was whether the wife’s very substantial delay could be raised as a defense to either the claim for unpaid maintenance or the interest on that unpaid maintenance, or both.

For over fifty years Colorado law has been clear that  delay in collection efforts could not be a defense to collection of past due child support.  That rule was made clear by the Colorado Supreme Court in Jenner v. Jenner, 330 P.2d 544 (Colo. 1958) and Hauck v. Schuck. 353 P.2d 79 (Colo. 1960)  The rule was reaffirmed as recently as 2016 by the Supreme Court in In re Marriage of Johnson, 380 P.3d 150 (Colo. 2016)which specifically reaffirmed the rule but held that laches could apply to bar the the collection of interest .  Interest can be significant in these cases because, with respect to child support, it accrues at 12% annually, compounded monthly, per statute.

In the Kann case, the appeals court distinguished spousal support or maintenance from child support, pointing out that the former was not for the benefit of the children, was only awarded in certain circumstances, and the only person who suffered from failing to enforce the maintenance is the spouse who is making the alleged late claim. If the recipient of spousal maintenance has significantly delayed in attempting to enforce the award it would be fair for a court to assume that that spouse did not need the maintenance to meet his or her basic needs.  After making that distinction, the Court of Appeals concluded that laches could be asserted as a defense to a collection proceeding for spousal support.

The defense of laches requires the proof of 3 elements: (1) full knowledge of the facts by the party against whom the defense is asserted; (2) unreasonable delay by that party in pursuing a remedy; and (3) intervening reliance by and prejudice to the party asserting the defense.
While the successful assertion of a laches defense is only likely in extreme cases, the Kann case makes it clear that if the payor is failing in his or her obligation to make spousal support payments, the payee should not delay in seeking enforcement.
For further information about Garfield & Hecht, P.C.’s family law practice, please contact Bob Kendig at or Eric Musselman at .