Family Law

Retroactive Child Support

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What’s the Difference Between Past Due and Retroactive Child Support?

There’s a big distinction between a parent who is disobeying a court order by refusing to pay child support, and a parent who has not been ordered to pay support. Retroactive child support payments are ones that a parent hasn’t yet been ordered to make by a court. For example, a noncustodial parent (parent without custody of the child) may be on the hook for prenatal and labor expenses that are not covered by insurance. Specifically, parents who weren’t married when their child was born can be responsible for child support dating back to the child’s birth. However, these responsibilities don’t come into play until a court issues an official child support order.

How Do I Seek Retroactive Child Support?

Retroactive child support only applies to parents who weren’t married when a child was born. Even then, retroactive child support awards aren’t automatic. Instead, the parent seeking support must file a petition with the court specifically requesting retroactive child support payments. Because most child support awards aren’t retroactive, the custodial parent must also provide the court with reasons justifying the retroactive support award. Some circumstances that may justify retroactive child support include:

  • parent seeking support has a need
  • non-custodial parent concealed finances, or
  • non-custodial parent intentionally avoided support (such as hiding contact information).

Judges have tremendous leeway when it comes to ordering back child support. But the longer a parent waits to seek child support, the less likely a court is to award support for the entire period. If you’re a custodial parent considering seeking retroactive support, you should act swiftly because time is of the essence.

How Will a Judge Calculate Back Child Support?

Typically, a judge will use both parents’ incomes from the time period in question to calculate back child support. Even if the noncustodial parent previously earned minimum wage and now earns six figures, child support will be based on the lower wage.

Additionally, a court will take into account any previous payments made by a noncustodial parent to the custodial parent even if they weren’t part of a support order. Those payments can offset retroactive child support. Ultimately, retroactive child support shouldn’t place an unfair financial burden on a noncustodial parent. Payments can be reduced to allow a noncustodial parent to catch up on back and current child support orders.

Limitations on Retroactive Child Support

Certain states like Texas have no limits on the time period for a parent to seek retroactive child support. Other states, including California, impose a 3-year time limit for back child support. This means in California, a parent can seek child support for a maximum of 3 years prior to filing the support petition. The laws regarding child support vary tremendously from state to state. Contact a local family law attorney if you have questions about child support.

Questions for Your Attorney

  • What is the time limit in my state for requesting retroactive child support?
  • I never told my child’s father about our child. Will this affect my ability to seek retroactive child support?
  • I received a petition from my ex requesting back child support. I can barely make ends meet as it is and my ex has a good job. What can I do if I can’t afford to pay retroactive child support?
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