Parents should be careful about getting everything in writing when it comes to child support. This protects both the paying and receiving parent. When things are not done through the court, both of them may have additional legal risks. With child support, the obligation to pay comes from the court order. Without it, a parent may not be able to collect it.
Parents can sue for back child support when the other parent has a legal requirement to pay. North Carolina law requires parents to pay child support based on a specific formula when they do not have physical custody of the child. This obligation continues through the time that the child reaches the age of 18 or graduates high school, whichever occurs later.
A parent could collect back child support regardless of the child’s age if the other parent failed to pay it when it was legally due. In other words, if the paying parent falls behind in their child support payments, they can be legally required to pay it years later until the debt is gone. This is why parents must ensure that they are current on their child support payments.
Avoid Informal Agreements and Do Things Only in Writing
Many parents try to do things informally when it comes to child support without the court for whatever reason. They are making a big mistake when they do this. “Off the books” agreements are a bad idea for many reasons. They do not work well for the parent who is receiving child support because they lose the authority of the court and the state in helping them collect.
The entire reason why a parent must pay child support is that there is a court order in place. The law gives them an obligation to pay, but the court order actually mandates payment of support. The authority of the court stands behind the order, such that one who does not pay child support risks criminal penalties, such as contempt of court.
The usual procedure is that child support will be ordered one of two ways:
- The parents enter into a marital separation agreement or some other agreement of support, and it is filed with the court. It then becomes part of a court order.
- The parents cannot agree about child support, and the court orders child support based on applying formulas in the law.
Without a court order, child support just becomes an informal agreement between the parents. The receiving parent has no legal right to it. In many senses, they depend on the good graces of the paying parent because they cannot do anything when it is not paid.
When there is a court order, the State of North Carolina has enforcement power when one parent does not pay. Specifically, the Department of Health and Human Services may have the power to locate parents and take measures to make them pay child support. However, they only have this power when there is a court order.
Parents also cannot sue for back child support when there was no legal obligation to pay it in the first place. If they are suing for back child support, it sometimes can only be retroactive to the day when the parent filed the petition in court. This means that the parent either needs a legal document in place or should have started the process towards obtaining one.
You Can File for Retroactive Child Support
Nonetheless, North Carolina does allow for retroactive child support to be ordered under certain circumstances. However, it is not considered to be “back child support.” Instead, the custodial parent must specifically petition the court to order retroactive child support. In a way, this could be like suing for back child support when there is no court order in place.
According to North Carolina law, when a parent files for prospective child support, they can also ask the court to order retroactive child support for the time period before the filing. The law says that a court can order retroactive child support payments for up to three years. However, a court may not always order retroactive active child support. The court can do the following:
- Order payment for reasonable expenses for the children incurred based on the other parent’s ability to pay.
- Use the North Carolina Child Support Guidelines to calculate retroactive child support.
There can be some uncertainty when asking a court to order retroactive child support. This support is not guaranteed, and judges have some discretion.
Therefore, both of the parents are better off having a written court order in place. This is certainly what is in the best interests of the children. Child support has numerous legal aspects that are not always cut-and-dry and easy for parents to understand on their own. Going through an attorney for a separation agreement or having the support ordered by the court can provide clarity and certainty that can benefit the children. On the other hand, proceeding on your own through an unwritten agreement can be dangerous from many perspectives.
Charlotte Divorce Lawyers
The attorneys at Remington & Dixon can help you with your custody and child support situations. Whether it is negotiating an initial agreement or dealing with a modification, we are there for you every step of the way. We are family lawyers who will always talk straight with you when laying out your legal options. Call us today at (704) 247-7110 or contact us online to discuss your case.
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Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.