Under the laws of the State of California, a parent has the rights and responsibilities to provide for their minor children. These responsibilities include financially supporting and caring for the children’s health, education, and welfare. This financial obligation exists even before a formal order for child support is established.
Child support is the amount of money that one parent is required to pay to the other for the purpose of helping to pay for their children’s living expenses, typically to be paid on a monthly basis. Child support can be in the form of a formal child support order, either by order of the court or a signed Stipulation and Order formalizing the parties’ agreement regarding child support.
Who owes, and how much, will be determined based on a number of factors, including the parties’ respective incomes, expenses, tax filing statuses, and the time-shares with the minor children.
Child support arrears is the term used to define any past-due payment or debt owing which is part of a court-order or stipulation related to the care and support of a child. A party does not begin to accrue child support arrears, also known as back child support or child support delinquency, until after a child support order is in place. If you have been ordered to pay child support and you have not paid or have only partially paid, then child support arrears will begin to accrue.
Retroactive child support is the term used to describe when a new child support order that will be used going forward is applied to an earlier date and results in a net amount of child support owing up to the date of commencement of the new order.
If one party in a dissolution or parentage action does not believe that the other party is paying their share of child support, or wants to the Court to establish or modify what child support should be, that party has the right to file a Request for Order (RFO) for Child Support requesting that the Court order the other party to pay child support or modify the amount of child support being paid.
Once an RFO for Child Support has been filed, it can take several weeks or months before the Court hearing on that request takes place. During this intervening period, the obligation to financially support minor children does not go away. If it is determined that a party has not been providing any, or underproviding, support for their minor children, the Court has the discretion to order retroactive child support owing back to an earlier date.
There are several factors which the Court can use to determine the date to use for retroactive child support, including but not limited to, the date the RFO was filed, delays in a determination of parentage/paternity, changes to the custodial schedule/timeshare, and the date when income changes occurred resulting in a change to the amount of support in a previous child support order. Skilled family law counsel can assist a party in presenting the facts in their case to argue for or against an order for retroactive child support and how far back it should be applied.
At the court hearing, the Court can make orders establishing or modifying the child support going forward as well as making a retroactive child support order applying that new support order back to an earlier date. A retroactive child support order will be the total net amount due and owing from the earlier date that the new order of child support is being applied to the date the new order of child support is due to commence and should include a timeline for payment of this retroactive support.
Depending on the amount of retroactive child support due, this amount might be due immediately (forthwith) or paid in set amounts at intervals (such as monthly) until paid in full. A skilled family law attorney can help determine and argue for a payment schedule to be included in the order that does not put an undue financial strain on the party paying under the order.
Retroactive child support is discretionary (meaning it is within the power of the Court to order, but is not required) and, if applied, is the truing up of child support owing based on a new or modified court order of child support. Child support arrears, on the other hand, are based on already ordered child support which is due and owing because of the payor’s actions in not paying. It is the payor’s actions that create child support arrears.
There are many reasons why child support arrears might occur, as every family law case has different facts. Some common examples are discussed below:
The child support payor intentionally decides not to pay the court-ordered child support. They simply neglect their duty and financial responsibility of paying child support.
The child support payor is unable to make the court-ordered child support. This could be the result of a change in income, expenses, and/or a sudden debt such as an unexpected medical expense.
The child support payor forgets to make a payment or misunderstands the court-ordered child support, resulting in the child support not being paid in full or in part.
In most cases, child support arrears cannot be simply forgiven or dismissed as it is debt that stems from court-ordered child support. Similarly, child support arrears are not dischargeable in bankruptcy.
In very limited situations, there are debt reduction programs that may offer some relief to someone owing back due child support where the minor children received public assistance. One such program, the Child Support Debt Reduction Program, has key qualifications that must be met to qualify, including the children at issue received public assistance (such as welfare) or were in foster care when the court-ordered mandate was in place, and you must be able to pay current child support and an ongoing debt repayment.
Even if a payor qualifies for a debt reduction program, these programs will not forgive the entire debt, amend the monthly child support obligations, or reduce any amount owing to the person receiving support, as these programs apply only to amounts owing to taxpayers due to public assistance.
Child support orders are financial obligations that can have serious legal repercussions if they are not paid in a timely manner and in compliance with the court’s orders. If a payor does not pay their child support obligation in a timely manner, they could be subjected to a number of legal enforcement remedies and consequences.
Some potential consequences that may occur if back child support accrues include:
If you are concerned about child support arrears and how they can impact you, do not wait to take action. The family law attorneys at Cage & Miles are ready to discuss your case with you. They can advise you as to any current child support orders, any back-due child support owing and how to address it, and any circumstances that might support a change in the current child support order and how to go about getting a modification to the order. Contact the attorneys at Cage & Miles today.