Child support refers to court-ordered payments, intended to aid in the financial responsibilities of raising a child. These payments are made by one divorced parent to the other, generally the custodial parent. Each state has its own laws regarding child support, as well as how to calculate how much should be paid each month.
Unpaid child support, or back pay child support, refers to missed child support payments. Because child support payments are legal obligations imposed by a family court, a parent violates the court order when they miss one or more child support payments. Parents who are owed back support have a right to these payments, and suing for back child support is not uncommon.
A parent who is owed back child support may ask the court to garnish the other parent’s wages. The court can then order the paying parent’s employer to deduct wages from their paycheck, so that the wages can be used to pay back support. Employers are legally obligated to comply with these orders.
If the paying parent loses their job, or the amount of the garnishment is insufficient to cover the back support owed, the parent owed the back support payments may pursue other legal remedies. They may have a lien placed on the paying parent’s property, which is a legal claim placed against real property or personal property. This gives the lienholder a security interest in that property, meaning that they are entitled to the proceeds from the sale of the property.
Generally speaking, an adult child cannot file a lawsuit against their parent for unpaid child support. However, there are some other ways in which an adult child may be able to sue for back payments. These will be discussed further later on.
What Is a Lawsuit for Child Support in Arrears?
An adult child may be able to sue a parent for child support in arrears, if the adult child is the designated executor or representative of their custodial parent’s estate. Child support arrears, or retroactive child support, simply means that the paying parent has failed to make child support payments and owes back child support as a result.
Simply put, child support in arrears can be either assigned or unassigned. Assigned child support in arrears means that the missed payments are to be paid to the state. This is considered to be a form of reimbursement for when the state paid for any of the missing child support payments, due to the fact that the child required these payments for their daily survival.
Such circumstances generally arise when the custodial parent is on public assistance because of the lack of support payments. As such, the custodial parent would most likely only receive payments from the arrears if there is any money remaining once the state has been repaid.
Unassigned child support in arrears payments refers to the amount that must be paid back to the custodial parent, who covered the missing amounts, so long as a child support waiver did not exist. If a child support court order was in place before the minor turned eighteen years old, the custodial parent can sue the non-custodial parent.
Alternatively, the adult child representing the estate of the custodial parent, can sue for back child support. It is important to note that in some states, other age restrictions may apply. Additionally, unassigned child support arrears goes directly to the custodial parent only if they have never received state or federal public assistance.
As previously mentioned, the custodial parent may choose to waive their right to this money. Such a court order would relieve the non custodial parent from making back child support payments. A waiver may be occur because:
- The custodial parent is financially capable of caring for the child on their own;
- The non custodial parent offers to pay a portion of the arrears, in exchange for the custodial parent waiving the remaining portion of the arrears; or
- The custodial parent and non custodial parents have reunited, are living together, and/or are sharing expenses.
What Are Some Issues with Lawsuits for Child Support in Arrears?
One of the biggest issues associated with lawsuits for child support in arrears would be how far back child support can be claimed. As previously mentioned, laws regarding back child support can vary widely from state to state. One example of this would be the statute of limitations for back child support.
In general, parents are legally responsible for financially supporting their children until they reach the age of majority. This age is most commonly defined as being between the ages of 16 to 19, but is most commonly 18. It is illegal for a parent to willfully fail to financially support their child; however, some states will usually abstain from taking action until after the divorce or dissolution of the marriage has been completed.
Many states have dictated that if the paternity of the child has not been established by the time the child turns 18, then no child support is due. In other states, such as California, there is no statute of limitations on establishing paternity, or on bringing a child support action such as a lawsuit to receive back child support payments. Generally speaking, once there is a court order for child support, it is enforceable from ten years to life, depending on the state. This time period will likely be based on the amount of time that has passed before the child is considered an adult.
Some examples of other issues to consider before filing a lawsuit for child support in arrears include, but may not be limited to:
- The court who initially ordered the child support payments must have also issued a prior judgment associated with the payments;
- This judgment must be permitted through state law to merge with the custodial parent’s estate;
- The parent in arrears must still owe the custodial parent those payments;
- The court must have appointed the adult child to become the representative or executor of the custodial parent’s estate; and
- If the adult child is not appointed as executor by the court, the custodial parent must have named them as the designated representative in their will.
When Is Child Support Owed to an Adult Child?
Most orders for child support usually terminate either when the child reaches the age of majority, or graduates from high school. Support orders also terminate when the child becomes emancipated, or free from the authority of their parents. However, there is one exception. Child support may still be owed to an adult child if they have a disability preventing them from earning a living and supporting themselves.
This exception includes physical and mental disabilities, including a chronic mental illness such as schizophrenia. However, the court will not generally focus on the exact type of disability they have, but rather if the adult child will be able to care for themselves without further financial support and supervision. In such cases, the court will calculate the amount of child support that is owed just as they would calculate it for a minor child. Additionally, the court will consider whether the adult child receives any sort of financial support from the government in order to supplement their income.
If a person has an adult child who has been diagnosed with a mental or physical disability and they have not been paying child support, their adult child may be able to sue them for any child support that is owed. Their adult child’s guardian may also be able to sue the parent who is in arrears.
Do I Need to Hire a Lawyer for Help with Unpaid Child Support Issues?
If you are experiencing any issues related to child support payments, such as wishing to pursue back child support, you should hire a local and experienced child support lawyer. As you can see, state laws regarding child support and child support in arrears can vary widely from each other.
An experienced and local child support attorney will be best suited to helping you understand your state’s specific laws, and how those laws will affect your legal options. They will guide you through the process of suing for back child support, and can also represent you in court, as needed.