Will I Owe Child Support Arrears?
Many parents paying child support only learn about the specter of child support arrears at their court date, and it often comes as an unpleasant surprise.
The common misconception is that one parent goes to court asking for child support from the other parent. The two go to court, testify as to their income, the child’s health insurance and childcare, and the judge tells them how much child support is to be paid. Fairly straightforward.
But then, the parent who must pay child support may be surprised to learn that they owe a second expense, a kind of penalty called arrears.
This is because, counterintuitively within the R.I. Family Court, child support does not necessarily begin at the initial court hearing when the judge determines the amount! Child support can legally be applied retroactively to the date that the parent paying child support was served by constable or sheriff.
An example is the easiest way to explain.
Mother and Father break up and a few months later Mother goes to the Rhode Island Family Court and files paperwork seeking child support from Father. Let’s say she files this child support case on January 1st. Thereafter, Mother gets a bit busy and does not serve Father with notice of the court appearance until February 1st. The court date is scheduled for March 1st when both parties appear, give testimony, and their judge determines that Father must pay child support of Five Hundred Dollars ($500.00) per month to Mother moving forward.
Father thinks that he must start paying child support right away, at $500.00 per month, and that he will be fine so long as he does so. But this is not necessarily the case.
Because Father was served with notice of the fact that Mother was seeking child support as of February 1st, the law states that Father should have begun to pay child support as of February 1st. Father, of course, did not know that and if he failed to pay any child support from February 1st to March 1st, then he owes $500.00 in child support arrears for the one month of non-payment on top of his regular, ongoing, future child support.
What is so confusing for the parties involved in this action is that even before a judge Orders that child support must be paid, and in a certain amount, theoretically child support continues to accrue in the interim while the parties await their court date.
Retroactive child support is a unique remedy in the Rhode Island Family Court. Imagine these same two parties, Mother and Father, are married and as part of the divorce Father believes he is entitled to Mother’s 401(k). When the parties finally get to court, even if the judge Orders that Mother must turn over her 401(k) to Father in order to balance the equities, certainly Father could not say that the 401(k) has thus been his the entire time.
The law is intimating that, in our example, Father should have begun to pay child support to Mother when he was served notice that his court date was the following month, even if at that court date the judge rules that no child support is due. This approach insists that a child’s financial quality of life must not be upended simply because the parent’s relationship has ended. The Family Court is, in essence, insisting that for this one issue the parents should cooperate and compromise in advance of their court date.
Should you have any questions about whether you are owed child support arrears, or what your exposure to pay child support arrears may be, be sure to set up a free consultation with an experienced Family Court attorney in your area.