Family Law

Retroactive Child Support

By Kristina Otterstrom, Attorney
Collecting long overdue child support.

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

There’s a big distinction between a parent who's refusing to pay court-ordered child support and a parent who hasn't yet been ordered to pay. If you're the paying parent, and a judge issues a retroactive child support order, you will have to pay support for a certain period of time before child support was officially granted.

There are a few different scenarios where retroactive child support might come into play. For example, an unmarried, noncustodial parent may have to pay for the other parent's prenatal and labor expenses and child support dating back to the child’s birth. A divorcing parent may have to pay retroactive child support for the months between the start of the divorce and when the court actually issues a child support order.

Past due support, also called “back” child support, results from one parent’s failure to pay court-ordered child support on time. A court may impose sanctions or penalties on parents who don’t fulfill their child support obligations. Sanctions can include fines, payment of attorney’s fees, and even jail time.

How Do I Seek Retroactive Child Support?

The parent seeking retroactive child support must file a petition (written request) with the court specifically asking for payments going back to a certain date and providing reasons justifying the retroactive support award, such as:

  • the child had unmet financial needs during the relevant period of time
  • the non-custodial parent concealed finances, or
  • the non-custodial parent intentionally avoided support (such as hiding contact information).

Judges have tremendous leeway when it comes to ordering retroactive child support. But the longer a parent waits, 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 Retroactive Child Support?

Typically, a judge will use both parents’ incomes from the time period in question to calculate retroactive 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 consider any previous payments made by a noncustodial 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 retroactive 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 retroactive 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 retroactive 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 child support?
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