Retroactive Child Support

In North Carolina, you can be court-ordered to pay for retroactive child support under two different circumstances: if you have missed or unpaid child support payments, or if you accepted public assistance on your child’s behalf within the last five (5) years. There have been significant changes to the law that calculates both kinds in the last 20 years, creating lots of uncertainty as to how retroactive child support is actually calculated.

Retroactive Child Support for Missed or Unpaid Payments

This type of retroactive child support, or “back support,” isn’t automatic or mandatory. Rather, the custodial parent has to ask the court to enforce it against the other parent for a period of up to the past three (3) years. It is up to the trial court to decide whether retroactive support is appropriate and then calculate the amount due.

The North Carolina Child Support Guidelines create statewide, uniform presumptive guidelines for the calculation of child support. However, the Guidelines did not address the computation of retroactive support until 2006, and for the next eight (8) years the court and legislature went back and forth about the correct way to calculate retroactive support.

As of now, the following rules apply:

1. If retroactive child support is awarded in a situation where the parents had a valid written separation agreement not incorporated into a divorce judgment setting child support amounts, the retroactive support is limited to that amount.
   • Unless there was an emergency and one parent had to incur expenses for the child
2. Otherwise, when the court calculates the amount of retroactive support, it must do so based on EITHER:
   • The version of the Guidelines that were in effect during that period and the parties’ salaries at that time
     • Under federal law the Guidelines are readjusted every four years to account for inflation or deflation.
   • The noncustodial parent’s fair share of actual child care expenses
3. North Carolina’s Guidelines follow an “income shares” model, meaning they take both party’s incomes into account. The idea behind this is that the child should receive the same amount of parental income that he or she would have received if the parents were still living together.
   • First, the court calculates each parent’s “adjusted gross income.” This is generally a person’s income minus any means-tested public assistance (such as food stamps) before taxes, retirement contributions or health insurance premiums, and can include a person’s potential income if they are voluntarily underemployed or unemployed. The court then adds both parties adjusted gross incomes together.
   • After inputting the parties’ combined, adjusted gross income into the relevant Schedule of Basic Support Obligations, the court can adjust the amount set in the Schedule upwards for:
     • Reasonable child care costs
     • Health and dental insurance
     • Other extraordinary expenses related to special schooling for the child’s particular needs or transporting the child between the parents’ homes

• If these expenses are necessary, reasonable and in the child’s best interests.

There are many different exceptions to the calculation of a person’s adjusted gross income, and knowing which Schedule of Basic Support Obligations to use can be tricky. Having a dedicated family law attorney to make sure these amounts are correct is important when it comes to knowing what you can expect to pay, or be paid, in retroactive child support.

Retroactive Child Support for Public Assistance Received on Child’s Behalf

Another way that retroactive child support can be sought is by the government. Whenever an adult accepts public assistance on behalf of a child, this creates a debt in the same amount that the adult owes to the State.

Under N.C.G.S. 110-135, if a parent meets the following two conditions during the same period of time, this public assistance debt is limited.

• The parent received public assistance on the dependent child’s behalf AND
• Was court-ordered to pay child support that they were financially able to pay during that same period.

In such a case, the parent’s public assistance debt is limited to the amount of child support in their court order.

If you are facing having to pay retroactive child support or need to assert your right to retroactive child support, you need a family law attorney who can walk you through the process and protect your rights. Please contact Arnold & Smith, PLLC today for a consultation with one of the dedicated attorneys in our Family Law Practice.