A child support order is a document signed by a judge, after a child support hearing, requiring one parent to reimburse the other for childcare-relataed expenses. These expenses are known as child support payments.
Child support payments are paid by the non-custodial parent, which is the parent who longer has custody. Each state has its own formula for determining the amount of child support payments to be paid. A non-spouse’s income (among other factors) determines the amount to be paid.
In a typical child support order, the judge orders the payments to be made on a prospective basis.This means the obligation to pay only “kicks in” after the child support order is signed. Under some circumstances, a court may order payment of retroactive child support. Retroactive child support payments are payments a non-custodial spouse must pay to the custodial spouse. These payments are for childcare-related expenses that were incurred before the child support payment order took effect.
When Must Retroactive Child Support be Paid?
The judge determines whether and when retroactive support payments must be made. Judges may order retroactive child support payments under several circumstances. For example, if the custodial parent has a can document a financial need for those payments, a judge may order the non-custodial parent to make the payments. Other circumstances under which a judge may authorize retroactive child support payments involve the non-custodial parent’s attempting to evade child support payments.
For example, a non-custodial parent, without good reason, may intentionally delay the child support hearing. In such cases, a judge may order retroactive payments to “cover” the period of evasion. Likewise, if a custodial parent presents evidence to the court that the non-custodial parent hid assets or cash to avoid paying their fair share of child support, the court may order retroactive support to be paid.
Certain states have no limit on the period of time for which retroactive child payments may be sought. Other states limit that time period. In California, for example, the retroactive child support period limit is three years. This means that a custodial parent may seek retroactive support for the three-year period immediately preceding the filing of a request for support (commonly known as a “petition,” which is a document in which the custodial parent requests that the judge hold a child support hearing).
How are Retroactive Child Support Payments Calculated?
When determining the amount of retroactive child support owed, a judge looks at the income (including income made from investments) the non-custodial parent earned during the period for which retroactive payments are sought. If, during that period, the non-custodial spouse earned significantly less, or significantly more, than the custodial spouse, the judge may take this into account, to either lower or raise the amount owed.
A court will also consider “unofficial” child support payments the non-custodial spouse might have made during the period for which retroactive payments are sought. “Unofficial payments” are those not made under an order of a court. Parents may have reached a voluntary agreement between themselves as to what the non-custodial parent was to pay during the period of retroactivity. Payments made during that period can be taken into account by a judge to “offset” the amount of retroactive child support the judge orders to be paid.
How Can I Obtain Retroactive Child Support?
Just as is the case with child support, a non-custodial parent and a custodial parent may voluntarily agree (contract with each other) to a retroactive child support payment schedule. If the non-custodial parent does not follow the agreement, the custodial parent may request a hearing to have the terms of the agreement enforced by a judge.
In cases where the parties do not come to an agreement, the custodial spouse may request a retroactive child support hearing. Retroactive child support claims must be supported by evidence. Such evidence includes, for example, documents that show that the noncustodial payment hid assets.
What Are the Consequences of Failing to Pay Retroactive Child Support?
Failure to pay retroactive child support carries legal consequences. A judge can hold a noncustodial parent who fails to comply with a payment order in contempt of court. Contempt of court carries penalties of potential jail time as well as monetary fines. A non-paying parent may also be subject to loss of professional licensure.
In addition, some states refuse to issue or renew a driver’s license to non-paying parents. Employers can withhold a portion of the wages of non-paying parents,to be used toward retroactive payments. Child support debts, including retroactive ones, cannot be discharged (erased) during bankruptcy. Generally, these debts do not expire. Attempts to collect retroactive child support are not generally not subject to a statute of limitations (a time by which a lawsuit must be brought).
Do I Need the Help of a Lawyer to Obtain Retroactive Child Support?
If you are owed retroactive child support payments, you should contact a child support attorney. An experienced child support lawyer near you can review the circumstances of your case and advise you of your options. The attorney can also represent you at hearings and in court proceedings.