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In a seminal case, the Colorado Court of Appeals has held that laches is a defense to maintenance arrears. In re: Marriage of Kann, 2017 COA 94. For non-lawyers, "laches" means that despite having a legal obligation to pay, the delay in enforcing payment has prejudiced the other side, so it is no longer fair, or "equitable" to enforce payment in a particular case.

In Kann, the facts were extreme. When the parties divorced, the separation agreement provided that Husband would pay Wife $1200/mo maintenance for life. However, Wife never enforced that obligation for the next 26 years, nor even asked Husband about payments, despite seeing him on multiple occasions. Thus, Husband had been lulled into a false sense of security that he somehow did not owe anything. Finally, in 2015, Wife sought a judgment against Husband for $520,000, nearly half of it in interest.

The Colorado Supreme Court had previously ruled that laches may be a defense to statutory interest on child support. In re Marriage of Johnson, 2016 CO 67, but not to the actual principal owing. The Kann court extended that holding to the principal owing, but only in a maintenance case.

The Kann court did not give a lot of guidance as to when laches may apply, other than this vague language: "When deciding whether delay is unreasonable, a trial court must weigh not only the length of time but also the attendant circumstances. Considerations include 'the acts and conduct of the party, if any, indicating either his assent to or acquiescence in the acts of the opposing party of which he then complains, or a waiver of his rights, and the nature and character of the property interests involved and to be affected." [Citation Omitted] But no matter how unreasonable the delay, the inquiry still shifts to prejudice. " ¶43.

Expect much litigation on how long a delay is required before laches may apply. In Johnson, 18 years was sufficient to trigger laches for the interest on child support, and you can expect lawyers will be litigating cases with 5-10 years of delay, arguing laches.

Have a CO divorce or custody case? Black & Graham can help.

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