In family law, the term child support refers to the periodic payments that are made from one parent (usually the non-custodial parent) to the other parent (the custodial parent) in order to help them provide financially for their child.
The law views child support payments as necessary because raising a child can be very expensive. Thus, child support is a way to make up for the costs associated with rearing children when the parents are no longer living together.
Child support may be formalized by an agreement made between the parents, which will include things, such as the amount to be paid and how frequently payments should be made.
The court will then approve the child support agreement and issue an official child support order. Violating a child support order can have serious legal consequences.
Despite the fact that child support is ordered by the court and thus could result in severe legal penalties, sometimes a parent may not be able to make payments. There could be a variety of reasons as to why the parent failed to pay or missed payments. When this happens, the parents may owe the custodial parent either retroactive child support or child support arrearages (e.g., unpaid child support).
What is Retroactive Child Support?
Many people often confuse unpaid child support payments with retroactive child support payments, but they do not mean the same thing. Unpaid child support involves the payments that are overdue from the period after a court has issued a formal child support order.
In contrast, retroactive child support refers to the amount that is owed to the custodial parent for child-related expenses that were made before the court issued a formal child support order.
It should be noted that the time frame for retroactive child support payments may begin the moment that the child is born or from when the parents are officially divorced. It may last until the child has reached the age of majority (usually 18), if the court has not ordered child support before then.
Again, if the court has formally ordered child support, then the missed payments are referred to as unpaid child support, not retroactive child support.
What are Child Support Arrearages?
As discussed above, child support arrearages, or child support arrears, are any payments that a non-custodial parent has failed to pay the custodial parent after the court has issued a permanent child support order. Basically, it refers to the amount of unpaid child support that is owed.
In addition, there are two types of arrears: assigned and unassigned. Briefly, assigned child support arrears are those unpaid child support payments that go directly to the state for providing assistance in place of the overdue child support payments. It is essentially a refund to the state.
On the other hand, unassigned child support arrears are payments that will go directly to the custodial parent when the state or federal government has not provided any assistance for missed payments. However, the custodial parent has the option to waive the right to these payments. This may be done through a child support waiver that is approved by the court.
Can I Avoid Paying My Arrearages? What is a Child Support Waiver?
A non-custodial parent may be able to avoid paying their child support arrearages and/or retroactive child support payments if they are able to obtain a child support waiver.
A child support waiver is a court order whose purpose is to relieve the non-custodial parent of having to make back payments. However, this type of waiver can only be obtained if the custodial parent agrees to waive their right to the owed child support.
Some of the reasons that a custodial parent may agree to such a waiver include:
- If the custodial parent is financially capable of supporting the child without the need of arrearages;
- Where the non-custodial parent offers to pay a portion of the arrearages in exchange for an agreement that the custodial parent waives the remaining back support payments; and
- When the custodial and non-custodial parents have decided to reunite (e.g., living together again as a couple and sharing expenses).
Do I Need a Court to Approve My Child Support Waiver?
If a non-custodial parent is seeking a waiver of arrearages, then they will need to file a waiver motion with the family court. The motion will contain the terms of the agreement reached between the custodial and non-custodial parent. Both parents must then sign the motion and await court approval before it takes effect.
Does the Court Automatically Approve the Waiver?
After the waiver motion is filed, the court will review the terms to determine whether waiving the owed child support would be in the best interest of the child. If the court finds that the custodial parent can sufficiently handle financially supporting the child alone, without the help of back payments, then the court will most likely approve the waiver.
Do I Need to Hire an Attorney for Help with My Child Support Waiver?
Obtaining a waiver for owed child support can sometimes be a challenging task because the law is very protective over children and ensuring the best interest of the child standard is being met. Therefore, if you need to file a child support waiver, or alternatively, if you are owed back payments, then you should contact a local child support lawyer for assistance.
An experienced child support lawyer can answer any questions you may have regarding child support waivers and can represent you in court. Your lawyer can also discuss the laws that apply in your particular state, the duties that are required under a child support order, the consequences you may face for not paying child support arrears, and how to receive payments if the child support waiver is denied and the non-custodial parent is still refusing to pay.