Tuesday, June 19, 2012
When does a parent qualify for Retroactive Child Support?
The first question that must be answered is whether or not there is a current order in place.
Retroactive Support in Cases without Current Child Support Orders:
If child support has never before been ordered, then in Massachusetts whether retroactive support will be due is dependent on whether or not the child in question was born out of wedlock.
In Massachusetts divorce cases there is a presumption that spouses have been supporting each other and their children and therefore child support can only be requested in a divorce case after the date of service of the Complaint for Divorce unless the parties voluntarily agree otherwise. For example, sometimes parties in a Mediation or Collaborative negotiation will agree to a voluntary temporary child support during the negotiation but this agreement is not enforceable in court.
In cases in Massachusetts where a child was born out of wedlock (usually referred to as Paternity cases), retroactive child support may be owed. If a parent has not been supporting their child and not living with the child, they may owe support all the way back to the child's birth. If a case isn't filed until the child is a teenager, this can be a complicated calculation requiring years of pay information, and can result in significant child support arrears.
Retroactive Support in Cases with Current Child Support Orders:
If child support has been ordered, then support may be due back to the date of the order if the parent has not been making the required payments.
A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment. To succeed on a Complaint for Contempt you must prove two things: first you must prove that there has been a "clear and unambiguous" order or judgment and second you must prove that the other party "knowingly violated" the order. In addition, in order to get sanctions for failure to make payments, you may also have to prove that the Defendant had the ability to pay.
If you can prove that support hasn't been paid as required by the order then support payments will be owed retroactively to the date of the court order, pursuant to that order. Interest and sanctions may also be applied.
If you are seeking to have a payment different than a previous child support order, then in Massachusetts you must file a Complaint for Modification.
A Complaint for Modification is the action by which you can request that the Court make a change to the past Court Judgments. To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.
Although an event may occur which warrants a change in child support, for example the payor has increased their pay significantly, any support change will not be effective on the date that the event occurred. In Massachusetts, changes in child support can only be retroactive to the date of service of the Complaint for Modification. Therefore, if you suspect that a change is necessary the sooner you file and serve the Complaint for Modification, the better.
In addition, many people will file a Motion for Temporary Orders on the new Complaint for Modification. The Courts typically did not allow a change prior to settlement or a trial unless there was an emergency that warranted a change. If you request an immediate change via Motion you should also file an Affidavit of Emergency to inform the Court why an immediate change is necessary.
PRACTICE TIP - However, at a recent seminar some Massachusetts Judges indicated that they are more willing to rule on Motions for Temporary Orders on Complaints for Modification than they have been in the past. This is because the Court Calendars have become significantly backed up and Judges recognize that delaying a change until trial could result in large retroactive orders. The injustice of these large retroactive orders could convince a Judge that a temporary change is necessary and even if denied, you can point later to the fact that you tried to avoid the retroactivity issue.