Can I Get Retroactive Child Support in New York?
By Stephanie Reid
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New York courts routinely award retroactive child support to the custodial parent to cover expenses she incurs while the divorce case is pending. Retroactive child support can provide additional funds for the children's needs while parents struggle to manage the household finances during a divorce proceeding. Child support payments are monitored by New York's Office of Child Support Enforcement, which helps custodial parents obtain missed or withheld payment amounts. Retroactive support can be paid in one lump sum or in periodic monthly payments.
Retroactive Child Support Defined
During a divorce proceeding, one parent is designated as responsible for the day-to-day care of the children and is known as the custodial parent. If, for example, the custodial parent files for divorce and child support on July 1 and does not obtain a final order from the court until the following June, the noncustodial parent would typically owe the monthly support amount for the months during which the divorce was pending. This is known as retroactive child support and is considered an immediate debt incurred by the noncustodial parent as soon as the order is rendered. New York courts hold the noncustodial parent responsible from the date the child support pleading was filed.
Once the court calculates the amount of retroactive child support, the judge must determine the best way for the noncustodial parent to pay this amount without causing unnecessary financial hardship for either party. In other words, the court will determine a retroactive payment amount that the noncustodial parent is able to pay while still providing enough financial resources for the custodial parent and child. When the court requires a child support amount that is higher than the amount recommended by the New York Child Support Standards Act, the court must issue a written order explaining that the higher amount is due to the added retroactive child support payment. Retroactive child support payments are only required until the amount is paid in full.
Pendente Lite Support
"Pendente lite" support refers to an interim order of child support provided by the New York court while a divorce proceeding is pending. This type of order is necessary to ensure the child is receiving adequate care, as divorce proceedings can take months or longer to resolve. Payments made under a pendente lite order are then credited to the noncustodial parent in determining the total retroactive amount owed, if any. If the noncustodial parent ends up paying more than was necessary during the pendente lite period, the court will not award a credit.
Paying Retroactive Support
If the parent is not making the retroactive child support payment, the custodial parent can ask the court to garnish the noncustodial parent's wages. New York law holds that child support obligations take priority over the payment of any other debt owed, including federal and state tax liens. Failure to make payments under a court order is considered "support in arrears" and could result in a finding of contempt and incarceration for up to six months. Other possible consequences include a tax refund intercept, suspension of driving privileges, credit bureau reporting, denial of passport or denial of professional licensing. The custodial parent can pursue these options through the New York Division of Child Support.
Stephanie Reid has been writing professionally since 2007, with work published in the Virginia Bar Association's "Family Law Quarterly" and the "Whittier Journal of Child and Family Advocacy." She received her Juris Doctor from Regent University and her Bachelor of Arts in French and child development from Florida State University. Reid is admitted to practice law in Delaware and Maryland.