While a divorce is being negotiated, everything related to it can feel up-in-the-air or in considerable disarray. One of the greatest concerns is whether or not the parent with temporary child custody, and perhaps primary child custody later, has enough finances to take care of their child before the divorce finalizes. If they do not, who will provide the necessary extra finances?
Using Retroactive Child Support to Pay for the Past
Unless a court sets up temporary child support payments at the beginning of a divorce, the duty to pay for a child’s needs as the divorce progresses falls upon whatever parent has custody in that same time period. However, this does not necessarily mean they are permanently saddled with all of those costs. If a court later assigns child support payments to be paid by the other parent, then it is possible to collect “missing” payments through retroactive child support.
In effect, retroactive child support is an order for a parent to pay support for the time period between the divorce filing and when a typical child support order was officially created. The payer is not being punished for ignoring or forgetting child support obligations because no such obligation had yet existed. Instead, it is just the court trying to set things right by eliminating any financial hardship the custodial parent experienced during the divorce.
A California family law court will usually consider a few factors to calculate retroactive child support:
- Both parents’ incomes during the time period in question – not current incomes.
- Voluntary payments made by the noncustodial parent that were not court ordered.
- Expected cost to raise the child based on their needs.
Since retroactive child support looks at the incomes of each parent during the period of missing payments and not what they make now, it is feasible a parent with much lesser income could be ordered to make retroactive payments to the other. This might happen, for example, if the custodial parent has gained a valuable promotion or career opportunity since the initial divorce filing and the noncustodial parent has since lost their job. In such a situation, it may be possible to negotiate a diminished or eliminated amount of retroactive child support with the judge or the other parent and the help of a child support attorney.
Lastly, California has a three-year statute of limitations on retroactive child support orders. The parent seeking retroactive child support can only look for payments that arguably have occurred in the last three years before filing such a petition with the court.
Protect Your Family & Finances with Our Help
Do you think you should be paid retroactive child support from your ex-spouse? Worried you will be forced to pay retroactive child support despite making less than your ex-spouse today? In either situation, Gille Kaye Law Group, PC and our Pasadena family law attorneys can be of legal assistance.
Backed by decades of experience and led by a Board Certified Family Law Specialist, we have the legal tools and know-how needed to guide your child support case in such a way that protects your best interests and that of your child. Let us hear from you today by contacting our firm and requesting a confidential consultation.