Collecting Retroactive (Non-Court-Ordered) Child Support
If you are serving your child’s other parent, or have been served yourself, with a court order requiring child support payments, the issue of retroactive child support needs to be considered.
The court order will set the amount that the noncustodial parent is required to pay from that point forward. If the noncustodial parent fails to pay these amounts, the county Division of Social Services (DSS) has a variety of enforcement measures it can take to effect payment for the custodial parent. Once these court-ordered amounts become past due, they are sometimes referred to as back-support.
If the custodial parent specifically requests it from the court, something called “retroactive” child support may also be ordered. Retroactive support differs from the other court-ordered payments in the time period it covers and the way it is calculated. To fully understand these differences, we must first examine prospective child support.Prospective child support
A court order first establishing the monthly amount a noncustodial parent must pay the custodial parent can arise in a variety of ways. If the child is a product of the parents’ former marriage to each other, the child support order may stem from the court order that finalized the divorce, or from the parents’ voluntary separation agreement that was thereafter approved by the court. If the child in question was not the product of the parents’ marriage, but paternity has been established, then the custodial parent may have obtained a court order for child support facilitated by DSS.
In North Carolina, the amount of court-ordered child support payments are usually based on our state’s Child Support Guidelines, which are generally based on the child’s need and the noncustodial parent’s ability to pay. These guidelines are written by the state’s Conference of Chief District Judges and updated at least once every four (4) years. However, if the parents agreed on an amount of child support in a voluntary separation agreement as discussed above, the court will base the parent’s support obligation on this agreement instead of the guidelines.
Timeline-wise, court-ordered child support payments will begin from the date that the custodial parent filed a claim with DSS. All things being equal (i.e. if there is not a significant change in custody, the child’s needs or either parent’s financial situation) these payments will generally be ordered to continue until the child reaches the age of 18, emancipates, or graduates high school. This type of forward-moving child support is referred to as “prospective” child support.Retroactive child support
If a court order for prospective child support is going to be put in place, the custodial parent may also file for “retroactive” support. Temporally, retroactive child support addresses reasonable expenses for the child’s care that accumulated in the time period before the custodial parent filed a claim for child support. As of 2011 in North Carolina, retroactive child support is limited to three (3) years. For example, if you filed your first claim for child support on January 1, 2010 and requested retroactive support in the claim, the retroactive support would not apply farther back than January 1, 2007.
Besides being limited in time, retroactive support is also calculated differently than prospective child support amounts. Providing for the support of your children is seen as both a legal and moral obligation that predates the child’s birth. Therefore, in the circumstance that the mother is the one filing for child support, retroactive child support can include pregnancy and birthing expenses, depending on when the mother first made her claim.
Although retroactive child support in North Carolina used to be recoverable only for amounts that were actually expended on the child’s behalf during the relevant three (3)-year period, a recent change in the law now allows a parent to ask the court to order that they collect the amount set forth in the guidelines.
The parent asking the court to order retroactive support must include the reasons justifying the support in his or her petition, such as:
- The child had financial needs during the relevant time period that were not met
- The noncustodial parent concealed his or her finances
- The noncustodial parent intentionally avoided providing support (such as concealing his or her contact information)
Retroactive child support can come into play in several different scenarios. For example, a divorcing parent may have to pay it for the months between the divorce filing and the date the court actually issues an order for prospective child support. An unmarried, noncustodial parent may have to pay for the other parent’s prenatal and labor costs and child support that dates back to the child’s birth.
Remember, retroactive child support is something that the petitioner (custodial parent) must specifically request from the court when the original claim for prospective child support is filed. It is not something a North Carolina court will order without request. If you are a custodial parent considering seeking retroactive child support, it is important to speak with an attorney as soon as possible, because time is of the essence in acting on this type of claim. Please contact Arnold & Smith, PLLC for a consultation with one of our experienced family law attorneys. We are located in the heart of downtown Charlotte, North Carolina and serve clients in Mecklenburg and the surrounding counties.