Retroactive Child Support: A Potential Abyss of Financial Despair

The obligation of non-custodial parents to provide financial assistance to their children, commonly referred to as child support, has long been a feature of state and federal legislation. However, in recent years legislation has become increasingly creative in the manner by which child support can be collected, particularly in cases where a child support obligor is behind in support payments. Given the ever aggressive state of the law, it is vitally important that anyone facing the possibility of ongoing support obligations or the imposition of retroactive child support obtain the expert advice of legal counsel to ensure the proper calculation of the support obligation and to ensure that the collection of past support is not excessive.

A child support obligation is typically calculated pursuant to specific guidelines set forth in Minn. Stat. § 518.551. Based upon these guidelines, support obligations will vary depending upon the amount of the obligor’s net monthly income and the number of children for whom support is collected. Support obligations also include contribution to work or education related day care expenses, and contribution to dependent health and dental insurance premiums and unreimbursed dependent health and dental expenses.

The general rule is that support will only be awarded retroactive to the date that a motion is filed. There are three principal instances when support can be collected retroactively:

  1. in paternity cases,
  2. in cases involving reimbursement to a county for public assistance, and
  3. where a legal guardian has custody of children with the consent of the non-custodial parent or by court order, and the children are not receiving public assistance. In each of these instances, with few exceptions, support can be collected for a period of two years prior to the filing of a petition or a motion that raises the support issue. In addition to being charged with an ongoing monthly support obligation, individuals will often find themselves suddenly burdened with thousands of dollars of child support arrears that will then be collected on top of the monthly support obligation, usually at the rate of 20% of the base monthly support amount.

In the first instance, Minn. Stat. § 257.66 allows a court to go back two years prior to the filing of a petition in a paternity case for past child support, as well as for expenses of pregnancy and confinement, and the mother’s lost wages. The statute requires the potential support obligor to pay “all or a portion of the reasonable expenses . . ., after consideration of the relevant facts, including the relative financial means of the parents; the earning ability of each parent;…”. Without proper representation, the tendency will be for the Court to charge the support obligor for the full brunt of the expenses that could potentially be imposed.

A second area where support can be awarded retroactively two years prior to a motion is in those cases where a county is seeking reimbursement for public benefits paid on behalf of a minor child. County attorneys pursuing these claims will routinely request reimbursement from a potential support obligor for the maximum amount regardless of any limitations inherent in the law. If there is a current support order, the county will not be entitled to reimbursement beyond any arrears in the existing order. The county will also not be entitled to a retroactive upward modification of the prior order in an attempt to obtain reimbursement. Finally, any calculation of past support for reimbursement to the county must consider the obligor’s financial condition at the time public assistance was paid, rather than the obligor’s financial condition at the time of the motion.

Lastly, legal guardians of children who are not receiving public assistance also can apply for retroactive support pursuant to Minn. Stat. § 256.87, Subd. 5. This statute allows retroactive support “only if the person or entity has physical custody with the consent of a custodial parent, or approval of the court.” In the vast majority of cases where this statute is applied there is no prior court order. Rather, the situation usually involves a separation between parents, where one parent retains custody of the child. It is important to understand that a non.custodial parent in this situation has the potential exposure of having to pay support retroactive for two years, thereby resulting in a heavier ongoing support burden than would otherwise have been the case.

Occasionally a county will bring a motion seeking reimbursement of public assistance and add to the motion a request for an award of retroactive support to the custodial parent for the period of time before public assistance was being provided. There are several defenses to this type of proceeding, not the least of which is the fact that Minnesota courts will only allow custodial parents to seek retroactive support pursuant to this statute in the context of a marital dissolution proceeding (as opposed to a reimbursement proceeding). In addition, these types of motions brought by the county attorney’s office are usually prosecuted by the county attorney on behalf of the county, not the custodial parent, and therefore the court will not have jurisdiction to award retroactive support to the custodial parent.

There are many pitfalls facing individuals against whom a child support order is sought. Managing the payment of an ongoing support order is difficult in and of itself but is frequently greatly exacerbated by the failure of the obligor to precisely articulate the proper calculation of net income and to artfully defend efforts to seek retroactive support. The failure to seek competent legal counsel at the outset will lead many into the abyss of financial despair as they eventually attempt to navigate the double burden of an ongoing monthly support obligation and financial obligations imposed retroactively. Good planning and good advice can avert an unduly burdensome support order.

Nicholas M. Wenner

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