How far can child support be backdated

Does California Allow Retroactive Child Support?

Hossein Berenji, Jul 03, 2020

California courts expect parents to provide for the financial needs of their children. This duty applies even if the parents are divorced or they never were married.

According to California Family Code §3900, parents have an equal duty to support their children. This duty is subject to the child support guidelines and other laws.

In most cases, child support results from a divorce action. However, a parent may petition for support payments even though the parents have never lived together. The status of the parents’ relationship does not impact the duty to support the couple’s child.

Seeking Retroactive Child Support in California

The court may order retroactive child support in some cases. However, a parent cannot seek retroactive child support back to the birth of the child. Retroactive child support payments are limited to the past three years.

Courts order retroactive child support when a final order for support was delayed. Retroactive support may also be ordered if a temporary child support order was not issued at the beginning of the action.

However, the retroactive payments only cover the period between the filing of the petition and the present date. The payments cannot exceed three years.

Service of the petition seeking retroactive support is crucial. If the parent was not served within 90 days after the petition was filed, the retroactive period extends back to the date the parent was served. If the parent deliberately tried to avoid service, the judge may adjust the retroactive period.

Is Retroactive Child Support Based on Current Child Support Guidelines?

Yes, the court uses the child support guidelines to calculate retroactive child support. However, several differences could modify the amount of retroactive child support payments.

The income of both parents during the retroactive period is used to calculate retroactive support payments instead of their current income. Thus, the amount of retroactive support payments may be different from ongoing support payments.

The judge may also consider voluntary payments made by the noncustodial parent toward the child’s support during the retroactive period. For instance, did the noncustodial parent pay daycare expenses for the child or school tuition? Did the parent give the custodial parent money to help pay for the child’s expenses?

Can a Parent Receive Retroactive Child Support Payments for a Modification?

In general, the court does not grant retroactive child support payments when the court modifies current support obligations. If the court changes the amount of child support payments, the new amount for support payments applies to future payments.

The custodial parent does not receive a lump sum payment for the difference between the modified child support payment and past payments. Likewise, the parent paying child support does not receive a credit if the modified support payments are lower than the original child support payments.

How Does the Court Calculate Ongoing Child Support Payments in California?

The court calculates ongoing child support payments after deciding about retroactive support payments. Child support in California is based on uniform statewide guidelines. A specific formula is used to calculate child support in California.

The mandatory statewide formula uses each parent’s income and how much time the parent spends with the child to calculate child support obligations. The formula is designed to ensure that each parent shoulders their fair share of the support. Custody is an important part of the equation. The custodial parent typically receives child support payments from the noncustodial parent.

A judge may also consider several other factors when determining the amount of child support payments. Other factors that could impact the amount of child support include:

the number of children the parents share;
the number of children the parents have with other individuals;
any expenses related to special needs;
health insurance premiums and health care costs for the child;
daycare or childcare expenses; and,
the earning capacity of each parent.

If the ongoing child support payments deviate from the child support guidelines, the judge must include an explanation of how he calculated the payments and the reasons for deviating from the guidelines.

Can the Parents Agree on Another Amount for Support Payments?

Parents may agree to pay child support payments that are not based on the California child support guidelines. Some parents may agree to a higher amount of child support because their child has a special interest that results in additional expenses, such as participating in a sport or hobby. Parents may also agree to higher child support payments to help with private school tuition or other needs of the child.

However, child support agreements are subject to review by the court. If the court finds that the agreement is not in the child’s best interest, the court may order a different amount of child support payments.

Can You Get Retroactive Child Support in California?

Learn more about California's child support laws, including whether you can request retroactive support.

Whether you're divorced or you were never married to your child's other parent, in most cases, the court will order one parent to pay child support. Child support is a monthly payment that one parent makes to the other to care for a minor child or children from the relationship.

Generally, a noncustodial parent pays child support on a bi-weekly or monthly basis, and the court takes the funds from a paycheck and sends it directly to the other parent. Of course, if you and the other parent agree to a different frequency or amount, the court may approve it, as long as it's in the child's best interest.

Each state has its own guidelines for calculating child support. In California, it generally involves calculating each parent's income, the number of children, the percentages of time the child spends with each parent, and extra medical or daycare costs. (Cal. Fam. Code § 4055.) In a small number of states, the court will take a specific percentage depending on the number of children and the paying parent's income.

What Is Retroactive Child Support? How Is it Different from Arrears?

When the court orders child support, the paying parent must pay the full amount of the court order each month. If there are any months where the parent fails to pay the full amount or only pays a portion, the court tracks it and considers the missing funds as "arrears."

Failure to pay "back child support" or arrears can result in the other parent or the court requesting the delinquent parent to attend a "show cause" hearing, where the parent must explain the missing payments to the court. (Cal. Fam. Code § 4000.) If the court is satisfied with the parent's reasoning and see there is a plan to catch up, there may be no additional consequences.

However, if a parent fails to attend the hearing or doesn't present the court with a good enough reason for the missing payments, the court can find the parent in contempt. Contempt of court punishment can range from the judge ordering a parent to pay the other parent's attorney fees, court costs or result in additional fines or time in jail.

Retroactive child support is not the same as arrears. Retroactive support refers to child support that accrued before a judge issued a child support order. Arrears only occur after the court finalizes the child support order. In many states, when a parent files for divorce or a standalone child support case, the court will backdate the support to the initial filing date, which some states refer to as retroactive support, but others call it arrears.

When are Courts Likely to Grant Retroactive Child Support?

It depends on where you live. In most states, courts limit retroactive child support for parents who waited for a court order. For example, suppose a mother files for child support on January 1st, but the court doesn't finalize a support order until April 1st. In that case, the judge will typically order the paying parent to pay the same amount of child support from January to April, in addition to the ongoing support.

Courts generally do not allow parents to recoup retroactive support when you request a modification of support, except to the date you filed. For example, if you have a reduced income due to an involuntary job loss and wait 6 months to file for a modification of your support obligation, you still owe the full amount of child support from the previous order.

If the court lowers your child support obligation after hearing your request, the lower amount only backdates to the date you served the other parent with your petition. So, if you can't afford your child support payment, filing for a modification as soon as possible is the best way to prevent arrears or contempt charges for nonpayment.

What are the Limits on Retroactive Child Support?

If your state allows retroactive support, the law likely also puts a time limit on how far back the court can reach. Some states, like North Carolina, limit retroactive child support for up to three years before the parent filed for support. (N.C. Gen. Stat. § 50-13.4.)

Others, like Michigan, don't allow "retroactive support" except to the date of the filing of the petition requesting support. (Mich. Comp. Laws § 552.452 (1).) In Michigan's case, the goal of allowing retroactive support is to ensure that the court doesn't punish the filing parent when the court calendar doesn't allow for quick order. It also protects the filing parent from missing out on valuable funds when the other parent purposely delays the child support hearing.

Under California child support law, you can request retroactive child support, but the court only calculates it from when you served your petition for divorce or child support on the other parent. (Cal. Fam. Code § 4009.) Other states, like Arkansas, allow parents to request retroactive child support back to the date of a child's birth as long as they request support before the child turns 18 (or up to 5 years after). (Ark. Code Ann. § 9-14-236.)

How Do Courts Calculate Retroactive Child Support?

Although each state's process may vary, the courts will generally calculate retroactive child support in the same manner that it calculates current child support. However, when calculating retroactive support, it's more likely that the judge will consider each parent's income during the retroactive period rather than the current income.

For example, in California, if you are requesting child support for 2017-2020, the court will consider both parent's incomes during that time. This means that even if one parent is now earning significantly more than in 2017, the only time the new income matters is when the court calculates the current support order. In California, when the court uses the state's guidelines, the law presumes that the amount of child support is correct.

The court may consider a parent's contributions to the child's upbringing, including payment for medical or other expenses in the child's life. (Cal. Fam. Code § 4006.) If the judge wishes to deviate from the guideline calculation result, the statute requires the judge to list the reason. (Cal. Fam. Code § 4056.)

In states where the law limits retroactive support to the date of filing (or the date of service), the judge will use the state's current guidelines to determine the amount the paying parent owes.

To learn more about how courts in California calculate retroactive support, you should speak with an experienced family law attorney near you.

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Recovery of alimony for the past period

A selection of the most important documents upon request Collection of alimony for the past period (legal acts, forms, articles, expert advice and much more).

Alimony:
Maintenance obligations of children to support their parents
Alimony obligations of spouses
Alimony in 6-NDFL
Alimony in a solid amount of
Alimony of individual entrepreneur
more ...

Judicial practice : Alimony for the last period

Open the document in your system ConsultantPlus:
Selection of court decisions for 2020: Article 113 "Determination of alimony debt" of the RF IC
(R. B. Kasenov) The court refused to satisfy the claims of the plaintiff - the recoverer of alimony for a minor child in enforcement proceedings to recognize as illegal the inaction of the bailiff, expressed in the refusal to calculate the debt on alimony; on the obligation of the bailiff-performer to calculate the debt. At the same time, the court recognized the conclusions of the trial court that the provisions of paragraph 2 of Art. 113 of the Family Code of the Russian Federation are of a general nature in relation to paragraph 1, since the fault of the alimony non-payer is presumed, therefore it is necessary to calculate the debt for the entire period from the moment the alimony is collected. As the court pointed out, as a general rule, the recovery of alimony for the past period is carried out within the three-year period preceding the presentation of the writ of execution for recovery. Alimony for the past period may be recovered within a three-year period from the date of applying to the court, if the court establishes that prior to applying to the court, measures were taken to obtain funds for maintenance, but the alimony was not received due to the evasion of the person obliged to pay alimony from their payment . In the case under consideration, there is no evidence in the case file confirming that the debtor evaded the payment of alimony. These circumstances indicate that there are no grounds for recognizing as illegal the inaction of the bailiff in terms of calculating the debt.

Open the document in your consultantPlus system:
Selection of court decisions for 2019: Article 113 "Determination of arrears of alimony" of the IC of the Russian Federation
(p .B. Kasenov) The court partially satisfied the plaintiff's claims against the Federal Bailiff Service of Russia for a constituent entity of the Russian Federation, the MOSP of the Federal Bailiff Service of Russia for a constituent entity of the Russian Federation, bailiffs to challenge the decision to calculate the debt for alimony, the decision to initiate enforcement proceedings, and to recognize the actions of the bailiff as illegal on the calculation of the debt, imposing the obligation to determine the settlement period of the debt for alimony, imposing on the bailiff the obligation to calculate the debt for alimony, inclusive, taking into account the amount of the plaintiff's income. The court pointed out that, in accordance with Art. 113 of the Family Code of the Russian Federation, the collection of alimony for the past period on the basis of an agreement on the payment of alimony or on the basis of a writ of execution is carried out within a three-year period preceding the presentation of a writ of execution or a notarized agreement on the payment of alimony for collection. Meanwhile, in this case, when determining the period of formation of debt, an official of the bailiff service should proceed not only from the provisions of the above rule of law, but also from the following circumstances: whether the period of formation of debt was previously the subject of a dispute resolved by a justice of the peace, whether the plaintiff is guilty of non-payment alimony, for what period there was an arrears in the payment of alimony at the time of termination of enforcement proceedings, as well as the fact that the child, for whose maintenance alimony was collected, has reached the age of majority. Meanwhile, these requirements of the law were not complied with by the bailiff when issuing a decision on the calculation of alimony arrears.

Articles, comments, answers to questions : recovery of alimony for the past period

Open the ConsultantPlus:
Article: Disputes on the recovery of alimony for minor children (based on the judicial practice of the Moscow City Court)
("Electronic magazine "Advocate Assistant", 2022) As a general rule, alimony is awarded from the moment you apply to the court (clause 2, article 107 of the RF IC). However, the law provides for the possibility of recovering alimony for the past period within a three-year period from the date of applying to the court.For the court to make an appropriate decision, the plaintiff must prove that before applying to the court he took measures to obtain funds for the maintenance of the child, but did not receive them due to the defendant's evasion from their payment (for example, Appellate rulings of the Moscow City Court dated 10. 06.2021 in case N 33-23383/2021, dated 06/24/2021 in case N 33-16479/2021, dated 06/16/2021 in case N 33-19802/2021, dated 04/16/2019 in case N 33-15990/2019).

Normative acts : Recovery of alimony for the past period

"Family Code of the Russian Federation" dated 12/29/1995 N 223-FZ
(as amended on 08/04/2022)
(as amended and supplemented, entered into force from 09/01/2022) Alimony for the past period may be recovered within a three-year period from the date of applying to the court, if the court has established that before applying to the court, measures were taken to obtain funds for maintenance, but the alimony was not received due to the evasion of the person obliged to pay alimony, from their payment.

Decree of the Plenum of the Supreme Court of the Russian Federation of December 26, 2017 N 56
"On the application by the courts of the law when considering cases related to the recovery of alimony" The court has the right to satisfy the claim for the recovery of alimony for the past period within a three-year period from the moment of applying to the court, if in during the trial, it will be established that before going to court, measures were taken to obtain alimony, but they were not received due to the evasion of the person obliged to pay alimony from paying them (paragraph two of paragraph 2 of article 107 of the RF IC).

Alimony: how to calculate who pays and what is the responsibility

Love lives for 3 years, and the obligation to support a child - until he comes of age. After all, the legislation provides for financial protection of children in the event that the parents did not agree on the characters. At the same time, the child has the right to financial assistance under any circumstances, even if the parents are still married, but for some reason do not live together. Financial support must be provided by the parent who lives separately.

The issue of alimony can be resolved amicably: former spouses independently agree on the amount of alimony, draw up an agreement and certify it with a notary. It’s not worth negotiating “on parole” - if relations with the ex-partner deteriorate, it will be very difficult to prove that you helped the child. If the issue cannot be resolved peacefully, alimony can be collected through the court.

Determine the amount of alimony in 2021

The amount of alimony depends on many factors. Some of them are permanent, others change every year. Let's figure out how to calculate the amount of alimony.

What income is the maintenance paid from?

The court takes into account the income, which is documented:

basic salary;
awards;
payment for work outside of working hours;
compensation for unused vacation;
additional rewards;
seniority bonuses;
unemployment assistance;
pension;
scholarship;
business income;
income from deposits;
rent and other.

Child support cannot be less than half of the subsistence minimum. So, in January 2021, these amounts were:

for a child under six years old - UAH 960;
from six to eighteen years old - 1198 UAH.

Only the unemployed will pay the minimum amount. In other cases, the amount of alimony depends on the official income and the number of children:

one child - 25% of income;
two children - 33% of income;
three children - 50% of income.

For example, if the salary is UAH 10,000, then maintenance for two children is UAH 3,300. Having children from multiple marriages with a parent does not affect the eligibility of those children for financial assistance.

Child support cannot be replaced by other types of financial assistance. For example, a man refused to pay child support because he opened a bank account and transferred money there for the child's future. The court decided that financial expenses for children occur on a monthly basis, therefore, it did not count the alternative in the form of saving money, including on a deposit.

The amount of child support is not constant. If the financial situation of the payer has changed, the court may adjust the amount. For example, a girl filed a lawsuit to increase the amount of alimony. The reason is that the ex-husband moved to work in London, his income increased. Please note: in this case, in the statement of claim, you can indicate the amount of alimony in pounds sterling, and not in hryvnia.

As a general rule, alimony cannot be collected “backdated”. An exception - you can prove that before going to court you already tried to collect alimony, and the other parent avoided payments.

Submitting a claim

In order for the application to be accepted, it is important to complete it correctly. In the claim, indicate:

the name of the court. You should apply to the court at the place of registration of the defendant - that of the parents from whom it is required to collect alimony, or at the place of registration of the child.
information about the respondent: full name, place of registration, passport number and series, identification code.
claims. It is important not only to ask the court to collect alimony, but also to indicate their amount;
the amount of the claim. In addition to the amount of alimony, this may include compensation for the costs of a lawyer. Remember that the amount must be substantiated: attach acts of work performed and an agreement with a lawyer to the statement of claim.
substantiation of the position.
information about whether you tried to negotiate with your ex-spouse before going to court. You also need to indicate that your dispute has not previously been considered in another court.
list of documents attached to the claim.

There is no court fee to file a child support claim. But this fact still needs to be indicated in the statement of claim, otherwise it can be returned. The same fate awaits a claim if you forget to attach a copy of your passport and identification code to it; a copy of the child's birth certificate; certificate of registration of the place of residence of the child; copies of the divorce decree or marriage certificate. Difficulties may arise with the defendant's income statement. A lawyer or a judge will help with it, who will request an extract from the place of work.

Until what age is child support paid?

As a general rule, the obligation of parents to support a child ends when the child reaches 18 years of age. But there is an exception - if an adult child continues his studies and needs financial assistance. In this case, the parents must support him until he reaches the age of 23 or until the end of his studies. Please note that enrolling in an educational institution does not automatically extend child support - you need to go to court again. This can be done by the child himself, and by the parent with whom he lives.

Additional costs for the child

The other parent must financially participate in the additional costs for the child, which are caused by exceptional circumstances: the development of the child's abilities, illness, disability.

But be careful, not all circumstances are considered exceptional. For example, in 2020 the Supreme Court ruled that the purchase of a tablet was not such a circumstance. Spending should be a necessity, not a whim. Another court case: the child studies at a private school and studies music. Mom bought him a musical instrument for 20,000 UAH. And then she went to court to recover additional costs from her father. But the court decided that this purchase was not essential.

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Liability for non-payment of alimony

If the father or mother of the child does not pay alimony, a fine is charged on the amount of the debt. Penalties amount to 1% of the debt and are calculated taking into account the number of days in a month. After 2019year, the court changed the calculation algorithm, and now the penalty is charged on the entire amount of the debt. For example, you did not pay 1000 UAH each for November and December in 2020.