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Is child support retroactive to the date of separation?

January 2, 2017 Blog
The court makes a distinction between a non-custodial parent who is refusing to pay court-ordered child support and a parent who has not yet been ordered by the court to pay support. While past due or “back” child support happens when one parent fails to pay court-ordered support on time, retroactive child support may be issued in some cases to order a parent to pay support for a period of time before child support was actually ordered by the court.

Retroactive child support is not something that is automatically granted, however; it must be requested. If you have filed for legal separation or divorce, you should not expect child support for any amount of time before your file an application for child support. Judges have leeway and are more likely to order retroactive support to a specific date, such as the date of separation, as long as the request is filed in a timely manner.

How is Retroactive Child Support Handled?
Every state handles retroactive child support differently. In some cases, retroactive child support during a certain time frame is mandatory while other states require the custodial parent specifically request retroactive support in court documents and whether support is awarded is at the discretion of the judge. Courts are generally more likely to award retroactive support if the non-custodial parent knew or should have known that he had an obligation to support the child but failed to do so.

A common example of when retroactive support is ordered is in a situation in which the court orders child support must be paid from the date of separation, even though an actual child support order is still weeks or months away. Retroactive child support may also be ordered if the parents were not married at the time of the child’s birth. In this case, retroactive support may be ordered from the date of the child’s birth. The non-custodial parent may also be ordered to pay some portion of the mother’s prenatal and post-natal expenses.

Calculating Retroactive Child Support
When the court determines how much the non-custodial parent must pay in retroactive support, the parent’s during the time period in question is considered. If the non-custodial parent was working a low-paying job at the time and is now making more money, the retroactive support is based on the lower earnings.

The court also considers whether a man was even aware he had fathered a child in determining whether back support will be ordered. The court may not order retroactive support or limit the amount if it would cause a financial hardship for the non-custodial parent.

Every state limits how far back a judge may order retroactive support, although this limit varies by state. As an example, Texas law limits retroactive support to four years, regardless of the age of the child, while California law limits child support to three years before the date of the application.

Judges have a great deal of leeway in ordering retroactive child support. The longer the custodial parent waits, the less likely a court will be to order any support prior to the application date.

Retroactive Child Support is Not Always Awarded
The court does not always order retroactive child support, even if it has been requested. This is why it is important to take action as quickly as possible. The longer the custodial parent waits to request child support, the more likely it is that the court will not award retroactive support.

If the non-custodial parent makes child support payments before a formal order is in place, it’s also important to keep detailed records, including using a receipt book that the custodial parent signs or keeping canceled checks to show the money has been paid. Payments the non-custodial parent makes before child support is ordered are considered by the court.

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