Family Law

Make Sure Your Attorney Files a Request for Child Support With the Divorce Petition

By Joseph Pandolfi, Retired Judge

It's a given that divorce is going to impact a child. The depth of that impact depends, in large part, on the parents' approach to the divorce. Too often, a child's well-being will fall victim to parental bitterness. And while a court may be hard-pressed to protect a child from one or both parents' toxic attitudes, it does have the ability to ensure that the child receives adequate financial support. However, for the court to order child support, someone has to ask for it.

How Do Courts Decide Child Support?

In every state, legally-established child support guidelines govern both a judge's ability to order support and the amount of the support award. As a general rule, these guidelines seek to create a child support order that maintains the amount of parental income spent on the children before the divorce.

In making its decision, a court will normally look at the couple's income and assets, all of which the parents must document and present to the court, through their preliminary financial disclosures. Courts will also consider the amount of time each parent spends with each child.

It's important to note that the issue of child support is fluid. It can be raised at any point during a separation or divorce, and is subject to change, depending on the parents' circumstances during the divorce and in the future. Additionally, the law won't allow a parent to waive child support.

Despite the fact that a parent can seek child support at any time, there's a reason why you might want to make the request when your attorney files the divorce petition (complaint).

You May Need Child Support During the Divorce Proceeding

Unless you've resolved all your marital issues before you file for divorce, the odds are that your case is going to drag on for at least a year or so. If you're the parent with whom the children primarily reside (custodial parent), and you have more than sufficient income to provide for the children without any help from your spouse, maybe you're content with delaying the resolution of child support until the end of the divorce process. But that's not a common scenario. Usually, the custodial parent needs additional income during the divorce to pay for the children's food and clothing and to maintain a residence, including mortgage or rent payments. If the other parent isn't willing to voluntarily provide temporary child support pending the outcome of the divorce, then you're left with no alternative but to seek the court's help.

The benefit of requesting child support at the same time that you file your divorce petition is that it jump-starts the exchange of the financial information the court needs to make a decision on the support amount. The "divorce discovery" process will start immediately, because you made child support an issue upfront. The sooner the court has the required information, the sooner it's able to award support.

Even if you're not requesting child support immediately, the fact that the court has the documentation needed to make a decision provides you with the security of knowing that the court will be ready to take action if you have to request temporary support during the divorce.

Remember, unexpected things can happen during a divorce. A spouse who's been voluntarily paying child support--that is, without a court order--can suddenly have a change of heart and stop sending checks. If that happens, you need to get into court as quickly as possible to keep support payments coming. If you didn't ask for child support at the start of the divorcee process, your request for a support order may be delayed while the court now gathers the needed financial documents. Since, by necessity, a court is going to address child support at some point during your divorce, it makes sense to cover your bases by making the support request when you file the divorce petition.

Another reason to make a formal request for child support when you file for divorce is that in some states, including California, you can't later ask for child support retroactive to the date you filed for divorce. In other words, you won't be able to get reimbursed for child support you never asked for.

For example, let's say you file for divorce in January, but you don't include a request for temporary child support when you file. In April, you submit an official petition for child support, but you can only ask for payments from April forward: You can't request child support for the months between January and April (unless you and your spouse entered into a stipulation (formal written agreement) regarding retroactivity.
These issues vary from state to state, so it's best to speak to a local family law attorney if you have questions about when to file for child support.
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