A key issue in a divorce or legal separation is child support. Generally, the child is raised by the custodial parent while the non-custodial parent contributes by paying child support. A child support order, however, can be delayed or not attended to, leaving the custodial parent to take on financial responsibilities during the process. This is why Arizona has adopted laws on retroactive child support.
What Is Retroactive Child Support?
“Retroactive” means that the child support order starts from a previous date. For example, the court might give the order in March but decide that child support should have started the previous January. In this case, there would be two months of retroactive child support owed to the custodial parent, on top of the regular monthly support payments. Hence, retroactive child support is sometimes referred to as back child support.
Past-due support payments are not the same as retroactive child support. A retroactive obligation arises when the court decides that payments should have started in the past, even though the order has just been given. By comparison, unpaid or past-due child support results from a parent missing their monthly months which were already ordered by the court.
When Is Retroactive Child Support Applicable?
According to Arizona Revised Statute 25-320, “if child support has not been ordered by a child support order and if the court deems child support appropriate, the court shall direct, using a retroactive application of the child support guidelines to the date of filing a dissolution of marriage, legal separation, maintenance or child support proceeding, the amount that the parents shall pay for the past support of the child.”
Two clear conditions exist whereby retroactive child support is applicable. First, there must be no existing child support order. Second, the court must determine that child support is appropriate to the case.
There are several situations where back child support may be ordered. The non-custodial parent may have acted in a way that delayed the final hearing on child support, so that the custodial parent received no support during the long wait. Or perhaps the non-custodial parent concealed their assets to avoid getting a child support order. There are also many cases where the judge concludes that the custodial parent demonstrated a real need for back support.
How Far Back Can Retroactive Child Support Be Ordered?
ARS 25-320 also states that “the court may order child support retroactively to the date of separation, but not more than three years before the date of the filing for dissolution of marriage, legal separation, maintenance or child support.”
For example, if the parents had been separated for two years and 11 months before the court gave its orders, the back child support may cover two years and 11 months. However, it cannot extend past three years before the divorce filing date.
Additionally, an interest rate of as much as 10 percent per annum may apply.
How Can An Arizona Parent Get Retroactive Child Support?
Is there a specific process to file for retroactive child support in Arizona? No – as long as the parent has already requested child support along with their divorce petition, that parent does not have to specifically ask for retroactive payments. These retroactive payments will be mandatory once the court decides that the conditions have been met.
One noted example is the Simpson v. Simpson case. In it, the mother originally filed for divorce and child support in June 2008. The family court entered its orders only in April 2009. The court ordered the father to pay regular child support, but not retroactive child support, reasoning that the mother did not specifically request retroactive support.
The mother appealed and the Court of Appeals sided with her. It held that according to the law, the court “shall” order retroactive child support if conditions are met – the parent does not need to specifically request it. The Appeals court remanded the family court to calculate and award the mother the retroactive child support she was owed.
Can An Existing Child Support Order Be Modified Retroactively?
Parents are not allowed under Arizona law to change their existing child support order on their own or to make the changes start on a past date.
There are many reasons why a parent may want to change a retroactive child support order. Perhaps the custodial parent believes that the monthly support amount should have been greater from the start. Conversely, the non-custodial parent may think that the child support order is unfair and should have been decreased.
Unfortunately, child support modification cannot apply retroactively in Arizona. The best recourse for parents to file for modification as soon as they realize that the amount has to change.
Do you have a concern regarding retroactive child support in Arizona? You’ll want sound legal guidance on this issue, as it could greatly affect your finances after your divorce or separation. Schedule a consultation with Goldman Law for knowledgeable advice that’s suited to your case. Call us today at (602) 698-5520.