If you are a parent who has recently separated from your spouse or partner with whom you had a child(ren), then you should be aware how retroactive child support may affect you. Retroactive child support is child support in addition to the current support.

Pursuant to Section 61.30(17) of the Florida Statutes, “[i]n an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.” Section 61.30(17) of the Florida Statutes (2016).

In determining the retroactive award, the Court considers the following:

  1. The Court will use the obligor’s current income or obligor’s income at the time of the hearing on the matter unless the obligor can show his or her actual income during the applicable retroactive period.
  2. The Court will also consider the actual payments that have been made by the obligor for the benefit of the child during the applicable retroactive period. This means that credit would be given for support payments actually made during the retroactive period as long as there is evidence of what was paid.
  3. The Court typically considers an installment plan for paying retroactive child support. When the retroactive child support is paid in installments, that installment payment is tacked on to the current support and is made in addition to the regular child support payment.

It is also important to keep in mind how the “custodial” parent may waive the right to retroactive child support. The parents may also reach an agreement with each other on the amount of the retroactive child support rather than have the Court make that determination for them. As long as the agreed upon support amount is deemed to be in the child(ren)’s best interests, the Court will approve the agreement.

When the issue of retroactive child support is before the Court, the determination of the retroactive child support amount is a discretionary decision by the trial court. At the same time, a Court may also deny retroactive child support altogether. Jacoby v. Jacoby, 763 So. 2d 410, 417 (Fla. 2d DCA 2000). For example, retroactive child support may not be awarded or may be limited in amount if it is determined that there was no need for support during the retroactive period in question.

It is also important to keep in mind that the retroactive period cannot be longer than twenty-four (24) months. A “custodial” parent may only collect retroactive child support from the time the parents no longer resided together or for two years prior to the filing of the child support petition, whichever is shorter. This means that if the parents separated only six months prior to the filing of the child support petition, then the retroactive child support may only be collected for the six-month period during which the parents no longer resided together in the same household with the child.

Therefore, when the parents separate, it is prudent for the “non-custodial” parent to get into the habit of making regular contributions to the other parent and/or a third party for the support of his or her child(ren) to avoid having a large retroactive child support obligation.