Courts take very seriously cases in which child support is not being paid or there is a retroactive amount owing, as support is the right of the child. Child support becomes retroactive when the payor, fails to pay child support or fails to pay the proper amount, to the custodial parent or the parent with whom the child or children reside with on a full time basis. In legal terms the spouse receiving child support is called the recipient.
When does retroactive child support become an issue?
There are typically 4 scenarios. They include: disagreement between the parents as to the amount of time that a child or children reside with each parent, dispute over the actual income of the payor, an undisclosed increase in the payor’s income, or questions as to whether a child is actually entitled to support.
If parties are unable to negotiate and settle on the amount of retroactive child support payable by a payor, the court has the authority to make such an order, but only if the recipient makes an application to the court.
The court will first decide whether to award retroactive support by looking at such factors as why the recipient did not seek support earlier. For example, why the recipient did not start a court application as soon as the payor failed to make support payments? Why did the payor not pay the child support in the first place? Why did the payor not disclose an increase in income? How did the lack of child support affect the child? And, the hardship that may be put on the payor in paying a retroactive award to the recipient.
Once the court determines that it will award retroactive support, the court must then determine the amount of retroactive child support. The court’s first step is looking at the date to which the award should be retroactive. Usually, courts do not go back more than three years. Lastly, the court looks at the amount that the payor should have paid during that time by referencing the Child Support Guidelines.
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