Can I get back child support?
In a lot of ways, child support is one of the easiest issues in a divorce or custody case. It’s one of those things that is more or less easily established, since the calculation is based on a formula. You plug in certain criteria – the incomes of each of the parents, the cost for work related child care, the cost for healthcare coverage for the children only, support for other children, etc – and then, depending on the custodial arrangement (whether one parent has primary physical custody, whether the parents share custody and then, if so, how many days each parent has during a calendar year), a number pops out.
It doesn’t matter whether your attorney, his attorney, or the judge calculates support; if they have the same numbers, they’ll get the same answer. Child support is also mandated by law, so, even if he says he won’t pay it, or he makes life difficult, you can get support awarded by the guidelines.
I’ve had cases where child support was an issue. Usually, though, the only issue is that the child’s father won’t agree to support by the guidelines. It’s annoying, because there are guidelines for a reason, but we can always get support by the guidelines if we go to court. That can make things take longer and cost a little bit more, but, still – child support is the law.
How does child support get awarded?
Just like everything else, child support is either awarded by agreement of the parties, or in court by order of the judge.
If he just won’t agree – which sometimes happens – you can still petition the court for an award of child support. And, in this case, it’s not risky (it’s not like, say, child custody or spousal support, where there are a million different alternatives), since it’s the law.
I’ve had cases where husbands made it hard. I can think of two, specifically, where I was especially frustrated. In one, we had an agreement where husband agreed to pay support by the guidelines – but, at the time, we couldn’t calculate guideline support since we didn’t have an updated LES. Once we DID have the updated LES, he refused to pay the amount that the formula specified. His attorney tried to tell him, but he wouldn’t listen. So, we had to go to court.
He spun a sob story about how significant his legal expenses had been, and even the fact that the military had required him to move. The judge was not impressed. In fact, the judge was pretty harsh. The judge asked him whether the military had paid for that move, and also whether he believed that he should be exempt from supporting his child. Then, he awarded support by the guidelines, and also attorney’s fees.
In another case I had, the husband refused to pay until wife had a DNA test proving the child was his. She did, just to shut him up, and then he still refused to pay. He didn’t have an attorney, so there was no one to talk any sense into him. Anyway, we ended up petitioning the court – and, lo and behold, we got support by the guidelines.
Can I get child support retroactively?
I get lots of questions about back dating child support, and they’re pretty easy to answer. The answer is that, when you file a petition for child support with the court, you can ask for back (or retroactive) child support. The award of support relates back to the date that you filed your petition, so your child’s father starts off paying support with an arrearage.
If you’re negotiating an agreement, though, you’re not entitled to back child support – unless, for whatever crazy reason, he agrees to pay it. This may seem really inconvenient, but usually it’s not – though you may give up a couple of months of receiving support, it’s often considerably less than you would have had to pay to litigate the issue of support. Even though it’s an easy issue, and we know how the judge will rule, there’s a process and costs involved.
So, even though negotiating an agreement may seem like a less attractive option because back child support is generally not available (unless by some crazy miracle he agreed to pay it, which, frankly, I doubt), it’s not actually. In most cases, we’re ultimately able to agree anyway, and, regardless of the case, there are often other issues that need deciding, too – whether its only child custody and visitation or whether it’s everything in a whole contested divorce. Staying out of court can keep tensions from escalating, and make agreement on the other issues a little more realistic. So, you see, even though it has its costs (missing out on back child support as chief among them), there are some benefits, too.
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