Child support is money paid by one parent of a child to the other, usually periodically, e.g., monthly, to fulfill their obligation to provide financially for their shared child. The main purpose behind these payments is to ensure that the child is adequately supported and has the essentials, such as food, shelter, healthcare, clothes, and education.
Retroactive child support is a form of child support that is paid to cover a past period of time when the paying parent owed the support but, for whatever reason, was not obligated to pay it. For example, it might cover a period of time after spouses separate and one of them files for a California divorce, but before the court issues a final decree of divorce that orders one spouse to pay child support to the other.
In some states, a custodial parent might get temporary support to help sustain the child during the divorce process. But if the parent did not get temporary support, for whatever reason, then they might get an award of retroactive child support as part of the final decree of divorce.
This form of support should not be confused with the terms “child support back payments,” or “unpaid child support payments.”
The primary difference between retroactive child support and unpaid child support payments is that retroactive is based on the amount owed prior to the issue of a formal order, and unpaid refers to an amount of child support that is owed but has not been paid after the court has issued a formal order directing a non-custodial parent to make child support payments.
- Specifically, in regard to retroactive child support payments in California, the payment is still based on the amount owed before an order was created. However, the court examines a few other factors before making a decision, such as the following:
- The anticipated costs of raising a child based on their individual needs;
- The income of both parents during the time period for which the support is being requested;
- Any voluntary payments that were made prior to a court order; and
- Whether the request falls within the statute of limitations, which is 3 years in California.
Of course, as in all matters relating to children, the court applies the best interest of the child standard in California. A California attorney can explain the details.
State Variations: It is important to be aware that retroactive child support laws can vary significantly by state. There are several factors including eligibility criteria, statutes of limitations, and discretion of the courts that may impact the support that is awarded.
In order to understand the rules of a specific state, it is important to consult with a local lawyer for information on family law and retroactive child support laws in the jurisdiction.
What Steps Must I Take to Seek Retroactive Child Support?
In order to receive retroactive child support in California, the parent seeking the payments must explicitly file a petition in court requesting retroactive payments. Other steps the parent must take include the following:
- Petition the court for child support: This involves preparing a petition for retroactive child support payments and filing it in the appropriate local court;
- Serve the non-custodial parent with the petition: The custodial parent must legally serve notice of the petition on the non-custodial parent. This gives the non-custodial parent notice of the request and of the date when the child support hearing is being held. Once the other parent has been served, the custodial parent must file proof of service with the court;
- Appear in court: A judge is assigned to the case and makes a decision after the child support hearing is held. The judge also determines how much the parent owes in retroactive payments (including any interest), as well as the amount of support owed on a monthly basis. The judge then issues an order that directs the non-custodial how much they have to pay.
One final thing that should be noted about California child support laws is that there is a 3-year statute of limitations for retroactive child support payments. Thus, a party seeking retroactive child support must file their request as soon as possible.
What Are Some Considerations Related to Obtaining Retroactive Child Support?
Costs/Fees: It is important to be aware that there may be some filing fees that will apply when submitting retroactive child support requests in California. These fees may vary depending on the specific court and the nature of the filing. It is important to check with the local court clerk or with a local lawyer to determine the applicable costs and fees.
Evidence/Documents: When an individual is seeking retroactive child support in California, they will need to provide documentation supporting their claim, such as financial records that show the income of both parents during the relevant periods, records of any voluntary payments that were made, and evidence of the child or children’s needs and any associated costs.
It is important to consult with a local attorney to determine what specific evidence will be needed in each specific case.
Can I Get Retroactive Child Support if I Never Filed?
A person must file a request for retroactive child support in a California family law court before they would become eligible to receive retroactive child support. A custodial parent who seeks retroactive support may receive it from the time a request to the court for child support has been filed.
Even then, there are times when the payment of retroactive child support does not start until a later date, such as a hearing or trial date. Therefore, it is best to file a petition requesting retroactive support as soon as a person believes they are entitled to it.
Are Retroactive Child Support Payments Required?
If a court orders a person to pay retroactive child support, then they are legally obligated to pay it, just as they are obligated to pay regular child support if ordered to do so by a court. If a court has not ordered a person to pay retroactive support, a non-custodial parent would not have to pay it.
In California, judges are given wide discretion to grant a request for retroactive child support if a custodial spouse submits a petition asking for it.
A court may award retroactive child support to a custodial parent in any of the following situations:
- If it is discovered that a non-custodial parent has intentionally hidden assets to avoid making child support payments, or has concealed them for the purpose of being ordered to pay a lower amount than they would owe if they had not misrepresented their financial situation;
- When a non-custodial parent behaved in a way that led to the initial child support hearing being delayed, which, in turn, ended up delaying the child support payments;
- If the court determines that based on other factors, such as the best interest of the child standard, child support payments should be backdated to a period prior to when the non-custodial parent was ordered to pay child support; and
- When the custodial parent is able to prove that the child had certain needs that went unmet during the period of time for which the custodial parent is seeking retroactive child support payments.
How Far Back Can Child Support Be Claimed?
The payment of retroactive child support in California is limited to the 3 years before the petition is filed. Thus, a person who seeks retroactive child support should file a petition with the appropriate court as soon as possible.
What Are the Restrictions on Collecting Retroactive Child Support?
In addition, retroactive child support is granted only as far back as the date when the non-custodial parent is served with the petition requesting child support. Moreover, if serving the petition for retroactive child support takes longer than 90 days, then the amount of support owed is calculated from the date of service rather than the date of the filing of the petition.
In other words, if service of process is not done correctly, then it could potentially cost a custodial parent in need of child support a significant amount of payment. There is one situation, however, in which some service of process issues are ignored, and that is when a non-custodial parent deliberately avoids or delays being served.
Risks/Penalties: If an individual intentionally avoids service, they may face negative consequences in legal proceedings. For example, a court may proceed with the claim despite the lack of service or it may take other steps to make sure the non-custodial parent is notified property.
Therefore, while it is possible to sue for retroactive child support in California, a person should be aware of all the potential restrictions. Because of the possibilities of missing deadlines and facing consequences if an individual avoids service, trying to handle a retroactive child support case without legal representation can be risky, especially if the case is complicated.
The Importance of Hiring a lawyer: It is important to have a lawyer in cases involving parentage disputes, high incomes, and when the other parent has a lawyer. A California child support attorney will give guidance on all legal procedures, how to gather evidence, provide representation in court, and increase the chances of obtaining a favorable outcome.
Do I Need a California Attorney for Help with My Retroactive Child Support Issue?
You could need help with requesting or modifying retroactive child support payments. If this is the case, you may want to consult a local California child support lawyer who handles child support matters for further guidance.
LegalMatch.com can quickly connect you to an attorney who can determine whether you have a valid claim to receive retroactive child support payments and help you file any legal documents needed to make your case. Your attorney will be able to represent you in any court proceedings.
