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Posted By Fair Cadora, APC

Due to the difficulty of calculating incomes, necessary expenses, and various costs of each spouse after a divorce, many divorces actually end without establishing child support payments. Only later when it becomes clear that the primary custodial parent needs financial assistance from their ex-spouse does child support come fully into view. This can lead to the question of back child support, or child support payments the receiving spouse would have obtained had child support been calculated and established the moment the divorce was filed or finalized. In many cases, the spouse who ends up paying child support will not feel obligated to pay back child support, so what can be done to collect it?

Family law courts require the following before approving of back child support payments:

  1. Retroactive Support: A court cannot order back support (retroactive support) to any period before the filing of a petition or request for support.

  2. Proof of Paternity: In cases where the noncustodial parent is the father and the parties were never married, the court will also have to see proof of paternity before approving of retroactive child support. Paternity can be established by either the child being born during marriage and the running of the statute of limitations, the father's signing of a voluntary declaration of paternity or a DNA test.

  3. Support Arrears: A party must file a request for the judicial determination of arrears to obtain a judgment on the amount of arrears owed.  

In addition to these legalities involving back child support payments, you will need to be prepared to show accurately how much was paid over the retroactive or arrears period. Using bills, receipts, necessary transactions, medical costs, and other such evidence from that time period is crucial. Try not to miss anything important, for if the back child support is approved for a certain time period, it is unlikely you will get another shot to collect more later on.  Also, NEVER PAY CASH FOR CHILD SUPPORT because there is no record the payment was ever paid. 

For the legal guidance and representation you might need in such a case, you can turn to Fair Cadora and our San Diego family law lawyers. People throughout Southern California know they can depend on our law firm when they need a compassionate attorney on their side through family law disputes and some of life’s most difficult challenges. Contact us today to schedule an initial consultation.

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