Fighting Claims for Back Child Support

Last Updated on July 1, 2022 @ 4:22 pm

A lawyer for child support deals with more than just helping custodial parents receive financial support for their children. A child support attorney also helps fight claims for back child support (sometimes called past-due support or child support arrears). When non-custodial parents are faced with the requirement to make child support payments that are past-due, they should get assistance from attorneys specializing family law to make sure the calculations are done properly and to make sure any judgments are as small as possible. Speaking with an expert child support attorney for a free consultation is your first step to getting things done right this time around!

Back Child Support Issues

If a parent obligated to pay child support stops making their child support payments, the custodial parent can take legal action which may be in the form of a contempt motion. Though custodial parents are entitled to exercise their child support rights, so are the parents charged with providing this financial support. Sometimes, extenuating circumstances cause non-custodial parents to fall behind with back child support payments and in these cases, the parent who owes support may have a valid legal defense.

For many non-custodial parents, child support represents a significant financial obligation. A layoff or large, unexpected expense can make it difficult to make child support payments. With the help of an attorney, a non-custodial parent may be able to lower child support payments, providing some financial breathing room. Non-custodial parents may also qualify for dependency exemptions for tax purposes as well as the Child Tax Credit and an attorney can make these determinations.

Typically, when a parent is paying child support, the court allows both parents to alternate the dependency exemptions and credits when they file their taxes each year. This is typical when a ‘reasonable’ amount of child support is being paid. What constitutes reasonable is open for interpretation and judges have wide-ranging discretion to make a final decision. for example, if a parent only has to pay $50-$100/month in child support, it would be typical for a judge to not allow that parent to claim the dependency exemptions and credits when he or she files taxes at the end of the year. But, if a parent is paying $400-$500+/month in child support, most judges will order the parents to alternate the credits and exemptions on their tax filings. This can make a huge difference and can provide the breathing room necessary for a parent that is struggling to keep up with their child support payments.

Types of Back Child Support

There are different types of past-due child support – normally known as past-due support or retroactive child support. Both types of child support that may be owed carry with them different requirements and different methods for calculating how much is owed.

Retroactive child support is an amount that is owed at a time prior to an Order for support being entered. For example, if someone files a petition for child support with the court, the other parent responds, the attorneys have a few court dates and finally a hearing takes place 6-months later, the time period between the filing of the petition for child support and the court order would be called a “retroactive child support amount.” The court would likely add up the court ordered child support amount and times it by those 6-months and the person who owes support would pay their normal amount plus an additional amount until that retroactive amount is paid off. Retroactive child support awards typically do not accrue interest either.

Past-due or child support arrears are different than retroactive child support. Child support arrears frequently are an amount that is owed that was not paid after a child support order was entered. For example, a child support order is entered 6-months ago to pay $500/month in child support. Over the course of those 6-months, the parent who owes support only pays 3-months of child support. The other parent could come back to court, possibly by filing a petition for rule to show cause (a petition for contempt) and ask the judge to enter a judgment against the child support payor for those 3-months of unpaid support. The judge could make a person pay an additional amount over time to pay it off in addition to their normal child support amount or they could order a lump sum to be paid on or before a certain date to satisfy all or a part of the back child support amount that may be owed. Child support arrears judgments also typically accrue interest until they are paid off. In some states, this may be 9% interest per year.

How to Get Rid of Back Child Support

There isn’t a very good way to erase back child support without having an expert child support lawyer negotiate a deal on your behalf. When back child support is owed, even bankruptcy will not usually discharge it. In fact, any debts considered “in the nature of support” for a child are not dischargeable through bankruptcy. These include debts for medical care received by the child. An attorney can help non-custodial parents find alternative ways to handle these debts without causing child support payments to go into arrears. For example, if uninsured medical expenses are not addressed in the child support order, this order may need to be revised to address who is responsible for payment. And if a parent paid for other expenses, the court might apply a credit toward back child support amounts that are owed. Other ways that back support can be fought is if a person lost their job, was injured at work, or (in some instances) was incarcerated and thus, not able to be employed.

Keep in mind that even when a child support order is called a ‘permanent child support order,’ this is just a phrase used to distinguish between a temporary order and a final order when the case is removed from further court dates (typically called when a case is “taken off-call”).  No child support order is set in stone, offering non-custodial parents some level of flexibility. If finances get tight, an attorney can fight to reduce child support payments so the non-custodial parent does not go into arrears with these. To prevent severe legal actions such as wage garnishment, issues with support payments should be addressed as soon as they arise. Filing a modification of child support as soon as something happens that would constitute a “substantial change in circumstances” (such as loss of job, disability, etc.), is essential to avoid any child support arrears from increasing.

What is the Next Step?

Start trying to get your finances in order and look for work doing anything you possibly can. Owing past-due child support can cause you to lose the ability to travel out of the country, have your drivers license suspended, or even end up in jail. As soon as an amount starts accruing and you start falling behind, get legal help. Non-custodial parents should not assume that they are the losers in child support negotiations. Attorneys fight for their rights so children receive the financial support necessary for a healthy and happy upbringing without a severe burden on the parent making the payments. If the financial situation of the non-custodial parent changes and payments slip into arrears, action can be taken to relieve this burden. But the only way to find out if you qualify for this relief is by finding out what your rights are–and you can do that with a free child support consultation today!