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RETROACTIVE/BACK CHILD SUPPORT

Disclaimer:  The legal information provided on this website is the product of Legal Aid NorthWest Texas (LANWT). None of the legal information on this website is associated with or the product of the Office of the Attorney General of Texas or any of its employees.

Q. Is back child support the same as a child support arrearage?

A.
No. A child support arrearage refers to child support you were already ordered by a court to pay but haven't. Back child support refers to retroactive child support.


Q. What is retroactive child support?

A.
Retroactive child support refers to child support that you may have an obligation to pay at some point but have not yet been ordered to pay. For instance, you could eventually be ordered to pay child support from the date you separated from your spouse but it could take weeks or months before there are any court orders. When the court does address the issue, they can order you to pay child support retroactive to the date you separated. Another scenario would occur if you are not married. In that case your child support obligation could begin at the time of the child's birth. You could also be ordered to help pay prenatal and postnatal expenses for the mother that were not covered by insurance.
 


Q. Will I always have to pay retroactive child support?

A.
No. Retroactive child support is not always ordered. It may not be ordered when the parties are in court rather quickly after the breakup.  Paying some money to the custodial parent even if none has been ordered by the court could result in these payments being credited toward any retroactive child support the court might order. It also shows the court you care about the needs of your children. Be sure to maintain records of any payments and bring those with you to all court proceedings.
 


Q. When can I be ordered to pay retroactive child support?

A. The court may order a parent to pay retroactive child support if the parent:

  1. has not previously been ordered to pay support for the child; and
  2. was not a party to a suit in which support was ordered.

A parent who is subject to a previous child support order can still be ordered to pay retroactive child support if the previous child support order terminated as a result of the parents getting married or remarried to each other; the parents separated after that marriage or remarriage; and a new child support order is sought after the date of the latest separation.


Q. How far back can the courts go in making me pay retroactive child support?

A. If the parents were married, retroactive child support can be ordered back to the date the parents separated. If they are not married, child support could be ordered to the date the child was born, plus prenatal and postnatal expenses not covered by insurance. However, the court will usually limit the amount of retroactive child support to an amount that does not exceed four years of support.


Q. Is retroactive child support automatic?

A.
No. The custodial parent must specifically request it in their court papers. This request can also be made by the Attorney General. If nobody asks for it, retroactive child support will not be ordered.
 


Q. How is retroactive child support calculated?

A. Retroactive child support is calculated the same way regular child support is calculated. You would be ordered to pay a percentage of the income you were making at the time the retroactive child support accrued. For example, if you were making minimum wage at the time the child was born but now you earn a lot more, the retroactive child support would be calculated at minimum wage. In other words, you pay retroactive child support based on the income you were earning at that time. For a more detailed description of calculating child support, see the Q & A section dealing with child support changes within this website. 


Q. What if I don't pay the retroactive child support?

A. Once retroactive child support is ordered by the court you must pay it. Failure to pay the support could result in other collection efforts or enforcement actions being taken against you.


Q. Is retroactive child support always ordered?

A. No. The courts are more likely to order you to pay retroactive child support if it is shown that you knew or should have known you had an obligation to support the child but did not. The courts do not necessarily expect you to know the exact amount you should pay.  Bring a record of any child support payments made to demonstrate to the court you were making a good faith effort to support the child.


Q. I just found out I may be the father of an older child. Do I have to pay retroactive child support even if I never knew the child existed?

A. Maybe. The court must consider the following items in deciding whether retroactive child support should be ordered:

  1. the resources of the non-custodial parent (obligor);
  2. whether the mother had made any previous attempts to notify the obligor of his possible paternity;
  3. whether the obligor had knowledge that he might be the father;
  4. whether the order of retroactive child support will impose an undue financial hardship on the obligor or his family; and
  5. whether the obligor has provided any actual support or help pay for the needs of the child before the lawsuit was filed.


Q. The custodial parent agreed that I would not have to pay any retroactive child support. Can the court order it anyway?

A. Yes. An agreement between the parents does not reduce or terminate retroactive support if the Title IV-D agency (the Attorney General) is a party to the lawsuit. As a party to the suit, the Attorney General also has to agree.


Q. I had a relationship several years ago. The mother of the child always told everyone someone else was the father. Will I still have to pay retroactive child support?

A.
Possibly. However, the law presumes that you should not have to pay more than four years of retroactive child support.


Q. Is it possible that I would have to pay more than four years of retroactive child support?

A. Yes. The presumption that you should pay no more than four years of back child support can be defeated if it is proven that:

  1. You knew or should have known that you were the father of the child; AND
  2. you sought to avoid the establishment of a support obligation.

Seeking to avoid the establishment of a support obligation is a very broad term. Commonly it comes up when a parent refuses to let the other parent know where to find them.


Q. I have always wondered if I was the father of a certain child but nobody has ever been to court to get child support. Will I be ordered to pay back child support if it turns out I am the father?

A. You can be ordered to pay retroactive child support but it is not always ordered and is not automatic.
 


Q. I had an affair with a married woman who got pregnant. If I am the father of that child, will I have to reimburse her husband for child support?

A. No, a biological father would not have to reimburse the mother's husband for child support. A husband typically has four years from birth to disprove paternity of a child; otherwise he cannot generally escape being legally obligated to support the child, even if he is not the child's biological father.