Under Florida child support law, the general principle is that both parents bear equal financial responsibility for child support. This is a rule of thumb that can be deviated from if circumstances so require – if one parent is genuinely unable to provide half of the child’s support, for example.
The custodial parent (sometimes referred to as the majority parent) is entitled to seek court ordered child support payments from the non-custodial parent. Retroactive child support is available if the custodial parent applies for child support at some point after becoming eligible to collect it.
Retroactive Child Support vs. Past Due Child Support
Retroactive child support is not the same as past due child support, and it is important to distinguish between the two. Past due child support is child support that has already been ordered against the noncustodial parent but was not paid at the time it was due. Retroactive child support, by contrast, is an obligation that is not ordered until after the custodial parent became legally eligible to collect it.
- Example of past due child support: A family court orders a non-custodial parent to begin paying child support from January 1, 2017, but by January 1, 2018 the non-custodial parent has not paid anything yet. In this case the non-custodial parent owes one year of overdue child support and can be penalized for failure to pay.
- Example of retroactive child support: On April 1, 2018 a family court orders a non-custodial parent to pay child support for the entire year of 2017. Although the non-custodial parent owes one year of retroactive child support, the amount is not past due on April 1, since it has just been ordered.
When Is Retroactive Child Support Assessed?
Retroactive child support is most likely to be assessed against a non-custodial parent during divorce proceedings but before a finalized divorce or child support decree has been issued. This retroactive support is in order to offset expenses incurred by the custodial parent during the proceedings.
Naturally, retroactive child support can also be assessed against a non-custodial parent who was never married to the custodial parent in the first place. For example, if a child is born out of wedlock and paternity was not established until the child was 10 years old, the court can order the father to pay retroactive child support.
The Two Year Limitation
Although child support can be ordered retroactively to the date of separation of the parents, Florida child support law places a limit of two years on retroactive child support obligations. In the above example, a court could assess retroactive child support for all of 2017 and all of 2016, but no further back than that.
The two year limit on retroactive child support does not, however, prevent a judge from assessing continuing child support obligations going forward until the child ages out of eligibility for child support. Additionally, retroactive child support could become back child support if the non-custodial parent fails to pay it by the deadline imposed by the court.
Filing for Retroactive Child Support
The custodial parent must file a written petition with the court to request retroactive child support. The petition must specify the date the payments should have begun and provide reasons to justify the award. Possible reasons include:
- The non-custodial parent concealed assets to the extent that more child support would have been ordered but for this deception.
- The custodial parent had unmet financial needs during the time period for which retroactive child support is being sought.
- The non-custodial parent deliberately avoided paying child support (by leaving the country, for example).
Florida judges are vested with a certain amount of discretion in assessing retroactive child support. In practice, the longer the custodial parent waits to apply for retroactive child support, the less likely they are to receive it (or the shorter the time period for which it will be ordered).
Calculating the Amount of Retroactive Child Support
When assessing the amount of retroactive child support, a family law court will apply the Florida Child Support Guidelines in effect at the time of the hearing. Nevertheless, the non-custodial parent’s income during the retroactive period will be used for calculation purposes – not the income at the time of the hearing – as long as the non-custodial parent can prove his income.
The judge may also give the non-custodial parent credit for child support payments already made during the retroactive period.
Of course, the non-custodial parent might not be financially capable of paying retroactive child support payments in lump sum. In this case, the judge has the discretion to allow payment in installments and to mediate a payment plan that is acceptable to both parents.
It is important to remember that assessment of retroactive child support payments will not reduce the amount of future child support obligations on the non-custodial parent. The non-custodial parent may end up owing both retroactive child support and current child support at the same time.
The assessment of retroactive child support has significant federal tax consequences:
- Your IRS tax refund can be confiscated to pay past due retroactive child support.
- If you are paying retroactive child support, you are NOT entitled to take a tax deduction on these amounts.
- The recipient of child support payments doesn’t pay taxes on child support payments.
- Since child support payments and spousal support/alimony are treated differently for tax purposes, it is important that spousal support and child support payments be separately designated so that the IRS can distinguish between them.
- Informal child support payments (not supported by a court agreement) are NOT treated as child support payments by the IRS.
Time Is Your Enemy until You Secure Proper Legal Representation
Retroactive child support can be a complex matter that requires a nuanced understanding of legal subtleties as well as a big-picture understanding of how the pieces all fit together. If you are facing such a situation, this is no time to go it alone or to try to get by with substandard legal representation – too much is at stake.
Contact the probate law attorneys at Beller & Bustamante, either online or by telephone at (904) 288-4414, so that we can schedule you a no-obligation consultation. We serve clients throughout Greater Jacksonville, including Northside, Westside, Southside, Arlington, the Jacksonville Beaches, and more.