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Can I Sue My Ex for Retroactive or Back Child Support in Texas?

Quite frequently when I meet with potential clients who are interested in establishing child support after breaking up with their Ex they are also interested in establishing retroactive child support. They want to know if retroactive child support is allowed in Texas and how much can they get. In this article, we will discuss what the Texas Family Code has to say regarding retroactive child support.

What is Retroactive Child Support?

Retroactive child support would mean that in addition to a court ordering monthly child support from a current date going forward, that court would require a parent to pay child support for previous times when that parent was not helping to support their child.

This could mean that if a parent has not provided any support for several years they would be significantly behind in their child support. This amount could be few thousand dollars to hundreds of thousands of dollars.

Can Family Law Courts in Texas Order Retroactive Child Support?

In short yes, Texas Courts may order retroactive child support under Texas Family Code Section 154.009 if:

  1. has not previously been ordered to pay support for the child; and
  2. was not a party to a suit in which support was ordered.

the court may order a parent subject to a previous child support order to pay retroactive child support if:

  1. the previous child support order terminated as a result of the marriage or remarriage of the child’s parents;
  2. the child’s parents separated after the marriage or remarriage; and
  3. a new child support order is sought after the date of the separation

Many parents may believe that they are only responsible for child support if there is a court order in place. However, it may be true a parent may not be forced to pay any child support without a court, it does not mean a court may not find the non-supporting parent responsible for that time they did not help once a court order is established.

Retroactive child support is not mandated by the Texas Family Code when paternity is established, but rather, is left to a factual determination on the part of the trial judge.

When establishing child support the asking parent can ask for in their petition to the court for both:

  1. Current Child Support and
  2. Retroactive Child Support

Retroactive child support is not automatic as with other things sought under the law you must plead for them in your request to the court.

How Far Back Can a Court Order Retroactive Child Support?

The presumption under Texas Law is that retroactive child support for four prior years is reasonable and in the best interest of the child.

This presumption may be overcome and support for additional years can be awarded if evidence is presented that the obligor:

  1. “knew or should have known that the obligor was the father of the child for whom support is sought; and
  2. sought to avoid the establishment of a support obligation to the child.” Tex. Fam. Code 154.131(d).

Other factors will consider when deciding whether to Order retroactive child support include:

  1. If the non-custodial parent was aware of their responsibility to pay or, in the case of the father, of their paternal status
  2. If any previous attempt by the custodial parent was made to inform the other parent of their responsibility
  3. The financial situation of the non-custodial parent, both currently and during the time-frame in question
  4. If the non-custodial parent has provided any support outside of a court order, monetary or otherwise, to the child
  5. the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor’s family
  6. the parent has provided actual support or other necessaries before the filing of the action

How, does a Court Decide When to Establish Retroactive Child Support?

Generally when making a decision on where to begin retroactive child support a court will look at:

  1. the time when parents separated as the place to establish retroactive child support or
  2. if the parents were never together then go back to the birth of the child

How, is Retroactive Child Support Calculated?

If a court decides to order retroactive child support, the amount of the retroactive child support payment according to Texas Family Code Section 154.009 will be calculated using the same formula used when calculating guideline child support:

  1. the Court will look at the net monthly income of the person ordered to pay child support the number of children before the court
  2. the number children not before the court
  3. the Court will then add up the number of months in which child support should have been paid to determine a total amount of retroactive child support.

Tips for Avoiding Back Child Support

  1. Do not pay Child Support in Cash. When providing support for your children you want to do it in a way that you can document and provide proof to a court. This could be check, money order, or any other way that clearly shows that you are providing support.
  2. Pay child support even when there is no court order in place. It is a good idea to provide support for your child as a good parent. It is also a good idea to provide support because should this go to court you could end up owing back child support. It has been my observation that if a parent can show they have been providing support a Judge is not going to overly scrutinize to make sure it is the exact dollar figure that should have been paid. They are going to give a parent a lot of credit for having provided support for their child.

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Other Articles you may be interested in:

  1. What do I do if I have overpaid child support in Texas?
  2. Child Custody Basics in Texas
  3. Child Support and College Tuition in Texas
  4. Texas Child Support Appeals
  5. In Texas are Child Support and Visitation Connected?
  6. Why Ignoring Child Support Obligations is a Bad Idea in Texas
  7. Texas Child Support – Trust and Annuities
  8. Special Needs Children in Texas Child Support Cases
  9. How to get above guideline child support.
  10. How to Terminate Child Support Arrears in Texas: A Step-by-Step Guide
  11. Handling a child support case as the non custodial parent, Part Five
  12. Modifying your divorce decree in Texas
  13. How to handle child support as the non custodial parent, Part Three

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