One of the most common questions we receive when parents are divorcing is whether the court will require payment of retroactive or “back” child support. This question often arises in situations where the parents have been separated for a significant period of time prior to beginning divorce or custody proceedings, with one parent being the primary caregiver to the child. Unfortunately, most people seeking retroactive child support come away disappointed. For this reason and others, you should consult with an experienced family law attorney as soon as possible if you are considering a divorce or separation.
Retroactive Child Support is the Exception, Not the Rule
As a general rule in the State of Washington, child support is not retroactive prior to the date of the filing of the petition asking for child support. To use the scenario above, you cannot seek child support for any period of time preceding the date you filed for child support even if you were the sole provider for the child. However, there are a few circumstances where child support can go further back.
Paternity Is an Issue
One circumstance is where the parents were not married and paternity is at issue. In a paternity action, the court will do two things: (1) determine whether a person is the child’s father, and (2) determine whether they, therefore, have an obligation to support the child. If paternity is established, the court can order the father to contribute to the birth expenses and can order them to pay five years of retroactive child support. The court would likely take into consideration any support that had been voluntarily paid previously (so make sure you can document any voluntary support paid) or any sharing of expenses while the couple lived together.
Lapse in a Prior Support Order
There can sometimes also be a retroactive modification of child support if the current child support order calls for support to be modified as of a specific date and that date has passed. While child support usually cannot be modified retroactively prior to the modification/adjustment action, it can modify the support back to the date that the prior court order stated that support should be modified. In other words, the only retroactive child support that will be required is what would have been paid had the child support been modified as originally intended.
To avoid this problem, it is a good idea to not include mandatory modification language in support orders but rather to provide provisions as to when support can be modified. This can help avoid a situation where you could inadvertently face paying a significant amount of back child support through no fault of your own.
Public Assistance and Retroactive Child Support
The non-custodial parent may be ordered to pay retroactive child support to the state if the custodial parent was receiving public assistance for the child during the time when the non-custodial parent had a legal obligation to support the child.
Do Not Confuse Retroactive Child Support with Unpaid Child Support
People often think of unpaid child support as retroactive or back support since it was previously due and remains unpaid. This leads to a great deal of confusion. If you are owed child support money under an existing child support order, you can enforce the order and collect whatever unpaid child support that you are owed.
Seek Guidance As Soon As You Are Considering Separating
At this point, you should recognize that timing is important when it comes to child support. If you do not petition the court for child support shortly after separating, you will likely be unable to recover any of your childcare expenses, even if you had sole custody of the child. Working with a lawyer will ensure that you can get a child support order in place fairly quickly so that you can get the financial assistance you need and your child can get the care that they deserve.
Contact Seattle Divorce Services for Help with Your Child Support Issues
Child support is vital to your child’s well-being, but it’s also important that the order be fair and equitable for all parties involved. The sooner you engage an attorney, the better your chances of a favorable outcome. At Seattle Divorce Services, we help clients navigate the challenges of a separation and work towards a better future for themselves and their children. To discuss your situation and how we can help, contact us today at 206-784-3049 to schedule a low cost consultation.