Retroactive child and spousal support are calculated based on the amounts not paid over a specific period. Generally, courts calculate retroactive payments from the filing date to the date when a new order is issued. The person expected to pay child and spousal support may be ordered to pay the unpaid amounts, in addition to the payments expected under a new order. The judge determines a separate amount they should have paid as a retroactive balance, which should be paid over a particular period, in addition to the amount they should pay according to the current order.
If you are going through a divorce, this is critical information you should have beforehand to prepare for what to expect when the judge issues the final order. You can speak with a skilled divorce attorney about retroactive payments and any other information you need to understand your situation and rights better.
Understanding Retroactive Support
When a couple files for divorce, it can take several months or even over one year before a court issues a final ruling. If one partner’s income is insufficient to support their needs, if a child is involved, the struggling partner or the one with child custody may struggle to meet their needs before the final ruling, when the court determines who pays child support and alimony and how much. This means one party may incur considerable debts, especially if the divorce process drags on for months or over a year.
It is only fair for the court to consider how that partner will recover their losses, even if they ultimately receive financial support from the other partner. Fortunately, this comes in the form of retroactive child support and alimony. Retroactive support is the amount one partner receives or pays for a prior period. Instead of considering child support and alimony after the date the final ruling is made, courts consider the amount the partner with custody or lower income deserves for the period between the filing date and the date when the final divorce ruling is made.
Thus, if you are going through a divorce, you file for child support and alimony. Still, the court does not grant your petition until seven months later, you deserve compensation for the seven months between the time you filed the petition and when it was finally granted. That seven-month period is retroactive.
However, there is a significant difference between the following:
- Initial child and spousal support orders (if there is no existing order before the final order is issued)
- Support order modifications when a party asks a family court to make changes to a current order
This difference matters since the law determines how each of these situations ultimately plays out.
Generally, any past-due or unpaid support is called back pay or back support. However, the law handles retroactive support differently. This is because retroactive support is for a very specific period during which no order is given on how support should be paid. The period happens between the filing and the determination of the case. On the other hand, back pay is unpaid arrears, or missed payments under a current court order.
When a partner misses payments on existing support orders and the arrears accumulate to a substantial amount, they are treated as a debt and accrue interest. Aggressive enforcement may be needed to ensure the person pays the arrears within a specified period. There is usually no room for forgiving or reducing back support, which may be possible with retroactive support.
Statutory Limit on Retroactive Support
There is usually a legal limit on how far the court can go when determining retroactive support in your case. Generally, courts consider the date you filed for support and when your petition was granted. If the filing date is different from when you served your partner, the court may consider that, too. This ensures that everyone is treated fairly in the end.
According to California Family Code 4009, the court will consider the filing date, or when you simply started the paperwork in your first child support petition. The filing date becomes the date the court will consider when counting the number of days your partner should pay retroactive support. However, if you did not serve your partner with the paperwork within ninety days of the filing, and your partner was not evading service, the retroactive order may not begin earlier than when they received the paperwork. Thus, even if you were covering the costs alone for months, the court will not award retroactive support for the earlier months unless there is a legal exception in your case.
According to Family Law Code 3653 on modifications, if you file to make some changes to an existing child support order, this law will limit retroactivity to when you filed the modification petition, or a later time, which the court will choose. The new changes, if the court grants your petition, will not be backdated to the date the order was first issued. If you are filing the modification petition to lower support, the court will not effect the changes before the filing date, even if your circumstances are sympathetic.
Note: The federal law does not advocate for changes in support orders before your partner is notified of your petition.
The Family Code 3653(d) limits the amount of reimbursement when a support order is terminated or reduced. If your partner files for a reduction in your support order, and the court grants their petition and effects the changes retroactively, you could be required to reimburse them for any overpayments made after they filed the request order. However, this refund is usually not automatic; it is a flexible remedy used by the court if there is a reason to believe that the reimbursement will be fair to your partner in the circumstances.
Equitable Credits
There are cases in which the parent paying child support lives with the child for a considerable time, yet the support order is not amended to reflect those living arrangements. In this case, the court may consider equitable credits.
Equitable credits are possible credits against child support when a parent can demonstrate that they were living with the child and were directly supporting the child’s needs at the time. Thus, the parent cannot be expected to pay retroactive support for the period before the order because they were supporting the child all along. While this is not generally based on any law, courts use this for fairness purposes and consider it on a case-by-case basis. Since the judge makes the final ruling after reviewing the case and the underlying factors, you need to prove your case very well for equitable credits to be considered in your case.
Note: Even if you have been supporting your child during the period between the filing and the child support order, equitable credits are usually not guaranteed. Not all judges grant them. However, you can try filing for them, with the help of your attorney, and wait for the court’s final determination.
What is Legally Allowed in Retroactive Child Support
Remember that retroactive child support applies in case there is a significant delay between the time a parent petitions for child support and when it is actually granted. If you file for child support during a divorce proceeding, and you take charge of your child’s needs without support as you await the court to grant it, you can file for retroactive support once the final order is granted. You can also file for retroactive support if there is already an existing child support order. Still, timeshare or income changes long before a court grants your child support modification order.
In these cases, the court will consider how long you have been catering to your child’s needs without adequate support after filing for it or for modification. However, family courts in California strictly consider the time between the filing date and when the order is granted.
The judge considers several factors when determining how far they can go when calculating retroactive child support. In most cases, they consider the date you filed or began preparing the paperwork for filing, or the date the court received your petition. Remember that the judge may also consider when you served your partner with the paperwork, especially if it happened way after the filing date. There are additional factors that could also influence the court’s decision on this matter, including the following:
Parentage or Paternity Matters
If there is an issue of parentage or paternity, the judge may grant retroactive support for a specified time before the matter is filed in court. This mainly happens when the non-custodial parent has not been contributing to the child’s welfare. The exact time the judge could order retroactive support is based on the support status and the specific parentage issue in your case.
Delay or Evasion
In most cases, judges consider whether there was a delay or evasion in serving legal paperwork to the other party. If the parent knowingly avoids being served or hides their income, the judge can use their discretion to order maximum retroactive support for the period between the filing and the current order. Additionally, they could impose sanctions and any other consequences as they apply in the individual case.
However, courts are also bound by federal and statutory limitations on how far they can go in determining retroactive support.
Generally, timing is key in determining how much retroactive support a parent can receive after a successful child support petition. When you file your paperwork and when you serve the other parent will determine how far the judge will go in determining the amount you are owed. For example, if you file your paperwork in January but serve the other parent in April, the judge may count the starting date or retroactive support from April and not January.
However, this applies where delays in serving are not justified. If you prove that the other parent was unavailable, or otherwise evaded the service, the judge may push back the timing to January, when you filed the paperwork.
Calculating Retroactive Child Support
California courts do not have a specific formula for calculating retroactive child support. Generally, judges use the same guidelines they use to determine child support. The principles considered in this case include both parents’ income, the time each parent spends with the child, and the child's needs (based on a particular past period). If this is your first child support order, the court will use the formula used to determine the support order in calculating what you should receive in retroactive support.
However, courts treat modifications a little differently. If you petition to modify an existing child support order, the court will compare what the paying parent was paying with what they are expected to pay under a new order. If a new order demands a higher amount, the difference from the old order’s amount becomes the arrears. Once the amounts are determined, the paying parent can pay a lump sum if they have the required funds, or make monthly payments for a particular period until the full amount is paid.
If the modification reduces the amount of support in the old order and the court grants the petition, the excess paid to the custodial parent is considered an overpayment. However, this does not mean that the paying parent will automatically receive a refund from the court. If the judge determines that a refund is fair, the paying parent can pay less every month until the excess amount is recovered. Also, the judge may cancel or reduce any other payment the paying parent owes, such as attorney fees, to equalize the payments. Although this happens rarely, the parent can receive direct reimbursement.
Note: Generally, arrears accrue a 10% interest every year until they are fully repaid. If DCSS is involved in the matter, it can enforce payments through strategies such as tax refunds intercepts, income withholding orders, liens, or driver’s license suspensions.
How Retroactive Spousal Support Works
Retroactive support applies to both child support and alimony. Thus, alimony can also be retroactive, and the low-earning parent in a divorce can file for it if the court takes a long time to conclude the matter. However, the focus here will be on stabilizing the finances of both partners so they can maintain the same lifestyle they enjoyed during marriage.
You can file for retroactive alimony if you have been covering most of your living costs while waiting for a court to adjust or set spousal support. If the waiting period is significant, and your income has been insufficient to support your expenses, the judge may look back from the time you filed for support or adjustment, and grant retroactive support to cover the gap.
Spousal support is critical in legal separations and divorces. If one partner earns way more than the other one, courts grant spousal support to ensure that even the low-earning partner enjoys the same lifestyle they did while in marriage. The amount in the order is mainly based on the income of both partners and their general expenses. If, after filing for separation or divorce, the court grants temporary spousal support, you may or may not qualify for retroactive alimony. A skilled divorce attorney will ensure you understand how this works and if you deserve more after the final judgment.
If the judge grants temporary alimony, they will make it retroactive to the date you filed a support petition in court. However, once the final judgment is entered in your case, the judge will decide how far they can go in determining how much retroactive support you are owed from the time you filed for spousal support.
According to Family Code 4333, the final alimony order can be retroactive from the date one partner filed a petition for spousal support. This may be the same date the separation or divorce was filed, or it may not be. If you first filed for separation or divorce, and then months later you filed for spousal support, the court will consider the date it received the spousal support petition, and not the separation or divorce petition.
In this case, timing is also very important. If you file for a divorce and on the same day you file for temporary spousal support, the court will count your retroactive support from the day you filed the divorce petition. If you do not file for temporary spousal support and only file for spousal support months after filing for a divorce, your retroactive support will not go back to the time you filed for a divorce. Working closely with a skilled divorce attorney ensures that you get the timing right to increase your chances of receiving the full support that you deserve.
Find a Competent Divorce Attorney Near Me
Understanding retroactive child and spousal support matters is critical if you are filing for a separation or divorce in San Diego. A skilled attorney can explain what you need to know and help you file the necessary petitions to ensure that you receive sufficient support for your child and yourself.
At San Diego Divorce Attorney, we discuss such matters beforehand to ensure that our clients are well-informed before starting the legal process. We also prepare and file the necessary paperwork on your behalf to increase your chances of a favorable result. Call us at 858-529-5150 to learn more about us.
