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 Payments Are the Exception, Not the Rule
As a general rule in the State of Washington, child support payments are 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 child support obligations. 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 Support for the Child
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 Child Support Arrears
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 child support arrears that you are owed.
Consequences of Not Paying Child Support in Washington State
When a parent fails to pay court-ordered child support, the consequences can be serious—both financially and legally. The state places strong emphasis on child support enforcement to protect the child’s right to stability and care, regardless of the relationship between the parents.
Civil and Administrative Consequences
The Division of Child Support (DCS), under the Washington State Department of Social and Health Services, is responsible for enforcing child support orders. If a parent falls behind on payments, DCS can take a range of civil actions to collect the debt:
- Wage garnishment: The state can withhold a portion of the delinquent parent’s income directly from their paycheck.
- Bank account seizure: Funds may be withdrawn from a non-paying parent’s bank account to satisfy child support arrears.
- Tax refund interception: Federal and state tax refunds may be intercepted and applied toward unpaid support.
- License suspension: Failure to pay child support can lead to suspension of the parent’s driver’s license, as well as professional or recreational licenses.
- Credit reporting: Child support arrears are often reported to credit agencies, negatively affecting the non-paying parent’s credit score.
These enforcement tools are intended to ensure compliance and protect the child’s legal rights to financial support.
Criminal Consequences: Misdemeanor and Felony Charges
In addition to civil penalties, Washington State law allows for criminal prosecution when a parent willfully fails to pay child support. The severity of the charge depends on how much is owed and the duration of non-payment.
- Misdemeanor: A parent who fails to pay child support for more than one year or owes more than $5,000 may be charged with a gross misdemeanor. This can result in up to 364 days of jail time and a $5,000 fine. Even a first-time offense can be prosecuted if there is evidence of willful non-compliance.
- Felony: If the non-payment continues for more than two years or the amount owed exceeds $10,000, the offense may be elevated to a Class C felony. Penalties can include up to five years in prison and a $10,000 fine. In extreme cases, federal charges may apply if the parent crosses state lines to avoid payment.
Importance of Child Support Enforcement
Child support enforcement plays a critical role in maintaining the financial security of children, particularly in single-parent households. Regular payments ensure children have access to food, housing, education, and healthcare. When child support goes unpaid, the burden often falls on the custodial parent and the state, potentially creating long-term financial and emotional challenges for the child.
The enforcement system also reinforces accountability and fairness. It ensures that both parents share the responsibilities of raising a child, even if they are no longer together. For this reason, courts and family law attorneys strongly encourage proactive compliance with child support orders.
Failing to pay child support in Washington State can lead to severe civil and criminal penalties, including jail time and felony charges. To avoid these consequences and uphold your child’s legal rights, it’s essential to stay current with payments or seek modifications if circumstances change. Consulting with knowledgeable family law attorneys is a crucial first step for getting proper guidance.
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 such 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 Obligations
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.