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Laches Defense

Laches is an equitable remedy that prevents a plaintiff (the one who initiates a legal action) from obtaining relief where he or she waited too long to file suit against the defendant. It is similar to the statute of limitations, which prevents a plaintiff from suing after a certain period of time (e.g., 2 years), except that there is no clear definition of what constitutes laches or how long is too long. The three elements of laches are (1) full knowledge of the facts by the party against whom the defense is asserted, (2) unreasonable delay in pursuing an available remedy, and (3) intervening reliance by and prejudice to the party asserting the defense. Hickerson v. Vessels, 316 P.3d 620 (Colo. 2014).

Laches is rarely raised in family law cases. Since at least 1960, Colorado courts have consistently held that the doctrine of laches does NOT apply in actions for the recovery of past due child support. See, e.g., Hauck v. Shuck, 353 P.2d 79, 81 (Colo. 1960). However, in 2016, the Colorado Supreme Court decided, in In re Marriage of Johnson, 380 P.3d 150 (Colo. 2016), that a petitioner MAY raise laches as an affirmative defense in an action to collect interest on unpaid child support.

In Johnson, the husband/father was ordered to pay $400 in monthly child support for his two children until they reached the age of emancipation. At the time of the divorce, the age for emancipation in Colorado was 21. However, in 1991, the Colorado legislature changed the age from 21 to 19. The husband, who at the time was unaware of the correct age of majority in Colorado, discontinued paying child support in 1994 when the youngest child turned 18, assuming that his child support obligation had ended.

In 2012, the wife/mother brought an action against her ex-husband in trial court, claiming he owed her $893,285 in back payments plus interest for years of unpaid child support. The husband objected that he should not be responsible for paying interest because the wife waited 18 years to initiate her claim. However, since the age of majority changed in 1991, the husband agreed that he was responsible for $4,800 for the one year of child support that he did not pay after their youngest child turned 18. The Court held that laches was an available remedy and remanded the case to the trial court to determine whether the husband could prove the necessary elements.

Consequently, if you are trying to collect unpaid child support plus interest, it is important to act on your rights as soon as possible. Otherwise, you may lose the right to collect what you are legally entitled to.

Please contact the Domestic Team at Cantafio Nagel & Song PLLC for all of your family law needs.

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