Can I get retroactive child support?
The state of Florida allows collection of child support prior to the date your application for child support was filed, between the date of the separation and the time the child support order went into effect. The maximum amount of retroactive child support payments available in the state of Florida is 24 months. This retroactive child support may be made in one lump sum, or in installments.
What is Retroactive Child Support?
The state of Florida holds both parents legally responsible for providing support to their children. Prior to a finalized divorce or order of child support payment, the court is likely to require the noncustodial parent to pay a portion of the expenses attributed to the children. One example would be when a divorce drags out for months and months, and during that time the custodial parent is paying for daycare expenses for the children as well as other regular expenses for the children.
Another scenario could be when an unmarried, noncustodial parent is required to pay back child support, and potentially even a part of the labor and prenatal expenses, dating back to the child’s birth, or no longer than two years. If a woman who had a child out of wedlock decides when the child is eleven to seek retroactive child support, that support will not go back to the child’s birth, but will only go back two years. Past due child support is a bit different from retroactive child support, in that past due child support is child support which has been court-ordered, but has gone unpaid by the parent. Retroactive child support could also be past due child support once it is ordered and goes unpaid.
In a divorce which may have dragged on for a time, once the child support order is finalized it will reflect any payments designated as retroactive child support. The state of Florida allows collection of child support prior to the date your application for child support was filed, between the date of the separation and the time the child support order went into effect. The maximum amount of retroactive child support payments available in the state of Florida is 24 months. This retroactive child support may be made in one lump sum, or in installments.
Under certain circumstances the amount of retroactive child support in the state of Florida may be limited, including times when:
- The other parent was financially unable to pay, or was unable to pay because of a physical illness or medical condition;
- The custodial parent had no need for child support during the period in question, or
- Payments could only be backdated up to two years prior to the date the custodial parent filed for support.
How Does Retroactive Child Support Affect Future Child Support Payments?
Those who are seeking retroactive child support may fear it will affect their future child support payments, however, retroactive child support does not reduce future payments which were ordered by the court and finalized by the court. Retroactive child support payments also have no effect on future child support modifications. A modification may be in order when the paying parent has experienced a significant change in circumstances and must petition the court for a change in the monthly child support payments, whether to reduce these payments or to temporarily postpone them.
If the noncustodial parent has been paying some support from the time of the separation to the time of the final divorce and child support orders, the court, after deciding how far back the retroactive payments will go, the amount already paid may be deducted from the amount of the retroactive payments. The goal is to ensure both parents are paying their fair share for the children, and that neither parent is paying more than the law requires.
Seeking Retroactive Child Support
The parent who believes he or she is owed retroactive child support must file a written request, or petition which specifies the date the payments should go back to, and provides reasons which will justify the retroactive child support award. Some of these reasons might include:
- The non-majority parent may have concealed their true financial status, meaning more child support would have been ordered if he or she had not been untruthful about financial information.
- During a specific time period, the child or children had unmet financial needs, or
- The non-majority parent deliberately avoided paying child support perhaps by concealing contact information.
While Florida judges are given latitude when ordering retroactive child support, the longer the custodial parent waits to file for retroactive child support, the less likely they are to receive the support, at least for the full two years.
How is Retroactive Child Support Calculated?
Just like “regular” child support, the judge will consider the incomes from both parents during the time period in question in order to calculate the correct amount of retroactive child support. Remember, the support will be figured at the salaries of the parents at the time the retroactive child support is being asked for. This means if either parent has a much better paying—or a lower-paying—job now than he or she did at that time, the court will not care.
Before the enactment of Florida’s retroactive child support laws, there was no limit on the amount of time a parent could go back—in other words, a mother who had a child out of wedlock could potentially wait until the child was 17, prove paternity, then seek retroactive child support for the full 17 years. Obviously, this could result in an undue burden on the parent ordered to pay retroactive child support; the law was changed in 1998.
Florida Statutes Regarding Child Support and Retroactive Child Support
Under Florida statute 61.30, child support is determined after considering all relevant factors. These factors include the age of the child, the needs of the child, the standard of living the child was accustomed to prior to the separation of the parents and the financial ability and status of each parent. Presumably, once all the financial information of each parent is put into the calculations, the judge is not allowed to vary from the resulting amount more than 5 percent without a written finding which explains why the guideline amount would be unfair or unjust. Under this statute, income for the parents is determined based on:
- Salary and wages;
- Overtime, tips, commissions, bonuses or allowances;
- Business income from a partnership, an independent contract, self-employment or a close corporation (Business income equals gross income minus expenses);
- Benefits from disability pay;
- Settlements and benefits from workers’ comp;
- Compensation for unemployment;
- Annuity payments;
- Benefits from Social Security;
- Any spousal support from a prior marriage;
- Any spousal support ordered in the current marriage;
- Interest income;
- Rental income (receipts minus expenses);
- Estate, royalty or trust income, and
- Reimbursements for living expenses.
If a parent is voluntarily unemployed or underemployed in an effort to minimize child support payments, the court is allowed to impute income based on what the parent was earning or could be earning. Public assistances is excluded from gross income, and both parents are allowed deductions for taxes, mandatory union dues, mandatory retirement payments, health insurance payments for the parents, court-ordered child support for children from a prior marriage, if that support is actually being paid and spousal support from a prior marriage. The net income for each parent is computed by subtracting any allowable deductions from the gross income.
Adjustments to the amount of child support due under the Florida guidelines could be made based on any of the following:
- Extraordinary dental expenses for the child;
- Extraordinary psychological expenses for the child;
- Extraordinary medical expenses for the child;
- Extraordinary educational expenses for the child;
- A significant independent income on the part of the child;
- Seasonal variations in either parents’ income or expenses;
- Support paid for a parent if a need has been demonstrated;
- The greater needs of older children;
- Special needs for a child with a disability;
- Total available assets of each parent and the child;
- The impact of taxes on each parent;
- A Parenting Plan which has the child spending a significant amount of time, but less than 20 percent of the overnights with one parent (reducing the financial expenses of the other parent);
- The refusal of one parent to become involved in the child’s activities, and
- Any other adjustment necessary to ensure an equitable result.
The statute states that the court has discretion to award child support retroactively to the date when the parents did not reside together in the same household, not to exceed a period of 24 months prior to the filing of the petition. In determining retroactive child support awards, the court will apply the guidelines schedule to determine the amount of retroactive child support due.
All actual payments made by one parent to the other parent or to a third party for the benefit of the child will be considered when determining retroactive child support. The court will consider an installment payment plan when retroactive child support is ordered. There are many other considerations regarding child support and retroactive child support in the state of Florida. One of those considerations is taxes.
How Child Support Can Affect Parental Taxes
Whether you are the parent ordered to pay child support, or the recipient of child support it can impact your taxes. The first thing to note is that for money to truly qualify as child support it cannot be based on a verbal agreement between the parents or cannot be “extra” money that one parent gives another. Payments for child support must be designated as child support in the legal documents of the divorce or separation agreement. A specific amount as well as the timeframe for payments will be set forth in these documents therefore is the only money which can truly be considered as child support. Retroactive child support will be designated as such in a court agreement as well.
It’s important to have a knowledgeable divorce attorney who can ensure the payments have not inadvertently been put together with other payments under a heading such as alimony or family support. Should this happen, none of the money can be considered child support as far as taxes are concerned. While spousal support or alimony is generally tax-deductible by the party making the payments, payments for child support are not tax deductible. How your divorce documents characterize the financial support for the children can have significant tax implications in the future.
How is the Recipient Taxed?
Who Gets to Claim the Children?
When parents are married, there is no decision to make on who claims the children as dependents and gets the accompanying tax break. Complications arise when parents are divorced or separated since only one parent is allowed to claim the dependent exemption. Lest you think the IRS will never know, think again since they cross-check dependent’s Social Security numbers to ensure taxpayers stay honest. Although the logical solution would be for the parent who needs the exemption the most to take it, divorced parents rarely work this amicably together.
Generally speaking, the parent with sole custody will naturally be entitled to claim the children as dependents on their tax return since they provide over 50% of the child’s support each year. According to the IRS, the parent who has the children in their custody, living in their home for the most time will receive the exemption. Even in cases where the non-custodial parent provides more than 50% of the children’s expenses yet the children live primarily with one parent then the custodial parent receives the exemption. When parents share joint custody, however, it gets trickier. Some parents’ simply alternate years, while others have who is entitled to the yearly exemption clearly spelled out in the divorce decree.
If you are owed retroactive child support or have been ordered to pay retroactive child support, or you have other issues regarding child support, it is important to speak to an experienced Ayo and Iken child support attorney regarding your issues. Child support is a legal, binding obligation with both parents expected to do their part in supporting their children.
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