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Retroactive Child Support

As is the case in other parts of the country, North Carolina law allows for an individual to be subject to a court order requiring him or her to pay retroactive child support. This may occur under two different scenarios - if the individual has missed or failed to make child support payments, or if the individual accepted public assistance on the child’s behalf within the past five years. Over the past two decades, there has been significant changes in North Carolina’s laws and how to calculate retroactive support in these two scenarios resulting in uncertainty and confusion for many in Monroe. Below is information that should help clarify how retroactive child support is actually calculated in Monroe, North Carolina for missed or unpaid payments, as well as for public assistance received on behalf of the child.

How is Public Assistance Considered Regarding Back Child Support?

In addition to the party’s former – or soon to be former – spouse seeking retroactive child support, the government can also do so. This is because whenever an adult accepts public assistance on behalf of a child, a debt is created that the adult will owe to the state. North Carolina law, however, does limit the amount of public assistance debt when two specific conditions are met - the parent received the public assistance on the dependent child’s behalf, and the parent was court-ordered to pay child support during a time that he or she was financially able to pay. If both conditions are met, the parent’s public assistance debt is limited to the amount of child support described in the court order.

How Does Retroactive Child Support “Back Support” Work?

Retroactive child support, commonly referred to as “back support”, is not a requirement nor is it automatically awarded by the court. In other words, the custodial parent of the child must take steps to specifically ask the court to enforce back support payments against the other parent. He or she may submit to the court a request for back support for a period of up to the past three years of support payments. It is then ultimately up to the trial court to decide the appropriateness of retroactive child support and, ultimately, calculate the amount that is due if awarded.

North Carolina’s Child Support Guidelines (NCCSG) create uniform and statewide standards for calculating child support. The NCCSG, however, did not address how to calculate retroactive support until 2006. For the eight years following, North Carolina courts and legislators went back and forth regarding the appropriate way to calculate retroactive child support.

Under current state law, retroactive child support in Monroe and other cities across North Carolina must abide to the following:

  • If retroactive child support is awarded by a North Carolina court where the parents had a valid written separation agreement setting child support amounts, and that agreement was not incorporated into a divorce judgment, the retroactive child support is limited to the amount set in the agreement. The exception to this rule is if there was an emergency and one parent had to incur expenses relating to the child;
  • In all other scenarios, when a North Carolina court calculates the amount of retroactive child support due, it must determine this amount based on either the version of the NCCSG that was in effect during the period in question and using the salaries of the parties at that time; or the non-custodial parent’s fair share of the actual child care expenses.

Notably, the NCCSG are readjusted every four years as required by federal law to account for inflation or deflation to account for recent economic conditions.

Moreover, the NCCSG follow an “income shares” model – in other words, both parties’ income is accounted for. This is because public policy finds that the child should receive the same amount of parental income that he or she would have received if the parents were still together. The court first calculates each parent’s adjusted gross income (AGI) – which is income minus any means-tested public assistance. AGI is before taxes, retirement contributions, or health insurance premiums are deducted. AGI can also include someone’s potential income if he or she is voluntarily underemployed or unemployed. Then, the court adds the two AGIs together and calculates the schedule’s basic support obligations. The court may adjust the amount set in the schedule upwards for reasonable health and dental insurance, child care costs, and other extraordinary expenses – such as those that relate to special schooling for the child’s particular needs or transporting the child between the parents’ homes. Extraordinary needs may be calculated if they are necessary, reasonable, and in the best interest of the child.

If you or someone you know has an outstanding obligation for retroactive child support – or you need to assert your right regarding retroactive child support owed to you – you need a family law attorney who can clearly explain this process. Contact Arnold & Smith, PLLC today for a consultation with one of our experienced family law attorneys