Whether you're divorced or you were never married to your child's other parent, in most cases, the court will order one parent to pay child support. Child support is a monthly payment that one parent makes to the other to care for a minor child or children from the relationship.
Generally, a noncustodial parent pays child support on a bi-weekly or monthly basis, and the court takes the funds from a paycheck and sends it directly to the other parent. Of course, if you and the other parent agree to a different frequency or amount, the court may approve it, as long as it's in the child's best interest.
Each state has its own guidelines for calculating child support. In California, it generally involves calculating each parent's income, the number of children, the percentages of time the child spends with each parent, and extra medical or daycare costs. (Cal. Fam. Code § 4055.) In a small number of states, the court will take a specific percentage depending on the number of children and the paying parent's income.
When the court orders child support, the paying parent must pay the full amount of the court order each month. If there are any months where the parent fails to pay the full amount or only pays a portion, the court tracks it and considers the missing funds as "arrears."
Failure to pay "back child support" or arrears can result in the other parent or the court requesting the delinquent parent to attend a "show cause" hearing, where the parent must explain the missing payments to the court. (Cal. Fam. Code § 4000.) If the court is satisfied with the parent's reasoning and see there is a plan to catch up, there may be no additional consequences.
However, if a parent fails to attend the hearing or doesn't present the court with a good enough reason for the missing payments, the court can find the parent in contempt. Contempt of court punishment can range from the judge ordering a parent to pay the other parent's attorney fees, court costs or result in additional fines or time in jail.
Retroactive child support is not the same as arrears. Retroactive support refers to child support that accrued before a judge issued a child support order. Arrears only occur after the court finalizes the child support order. In many states, when a parent files for divorce or a standalone child support case, the court will backdate the support to the initial filing date, which some states refer to as retroactive support, but others call it arrears.
It depends on where you live. In most states, courts limit retroactive child support for parents who waited for a court order. For example, suppose a mother files for child support on January 1st, but the court doesn't finalize a support order until April 1st. In that case, the judge will typically order the paying parent to pay the same amount of child support from January to April, in addition to the ongoing support.
Courts generally do not allow parents to recoup retroactive support when you request a modification of support, except to the date you filed. For example, if you have a reduced income due to an involuntary job loss and wait 6 months to file for a modification of your support obligation, you still owe the full amount of child support from the previous order.
If the court lowers your child support obligation after hearing your request, the lower amount only backdates to the date you served the other parent with your petition. So, if you can't afford your child support payment, filing for a modification as soon as possible is the best way to prevent arrears or contempt charges for nonpayment.
If your state allows retroactive support, the law likely also puts a time limit on how far back the court can reach. Some states, like North Carolina, limit retroactive child support for up to three years before the parent filed for support. (N.C. Gen. Stat. § 50-13.4.)
Others, like Michigan, don't allow "retroactive support" except to the date of the filing of the petition requesting support. (Mich. Comp. Laws § 552.452 (1).) In Michigan's case, the goal of allowing retroactive support is to ensure that the court doesn't punish the filing parent when the court calendar doesn't allow for quick order. It also protects the filing parent from missing out on valuable funds when the other parent purposely delays the child support hearing.
Under California child support law, you can request retroactive child support, but the court only calculates it from when you served your petition for divorce or child support on the other parent. (Cal. Fam. Code § 4009.) Other states, like Arkansas, allow parents to request retroactive child support back to the date of a child's birth as long as they request support before the child turns 18 (or up to 5 years after). (Ark. Code Ann. § 9-14-236.)
Although each state's process may vary, the courts will generally calculate retroactive child support in the same manner that it calculates current child support. However, when calculating retroactive support, it's more likely that the judge will consider each parent's income during the retroactive period rather than the current income.
For example, in California, if you are requesting child support for 2017-2020, the court will consider both parent's incomes during that time. This means that even if one parent is now earning significantly more than in 2017, the only time the new income matters is when the court calculates the current support order. In California, when the court uses the state's guidelines, the law presumes that the amount of child support is correct.
The court may consider a parent's contributions to the child's upbringing, including payment for medical or other expenses in the child's life. (Cal. Fam. Code § 4006.) If the judge wishes to deviate from the guideline calculation result, the statute requires the judge to list the reason. (Cal. Fam. Code § 4056.)
In states where the law limits retroactive support to the date of filing (or the date of service), the judge will use the state's current guidelines to determine the amount the paying parent owes.
To learn more about how courts in California calculate retroactive support, you should speak with an experienced family law attorney near you.