Retroactive Child Support In Nevada
In the State of Nevada, both parents have an obligation to provide financial support for a minor child that includes necessary maintenance, education, and health care (NRS 125B.020(1). But what if one parent refuses to pay child support to the parent providing support to a child while the divorce is in progress? In this article, we discuss the rights of either party to retroactively claim child support and/or collect arrearages for support obligations whether pursuant to a court order or not.
The basic tenets of child support court orders are governed by NRS 125B.020(1) that includes the amount of support, determination of such amount, the manner of payment, and health care provision for the child. In general, the amount of child support is a presumed amount based on the gross income of the non-custodial parent and the number of children involved. (NRS 125B.070). However, the court may deviate from the presumed amount if specific findings of fact are taken into account regarding a number of different factors. See (NRS 125B.090).
When a parent is obliged to pay towards the support of a child but fails to meet all or some of those obligations, debt will start to accumulate. If a court order is granted for child support to a custodial parent, he/she will be entitled to claim arrearages if the party charged for child support fails to do so. There is no time limitation (NRS 125B.050(3)(a) and a party can commence an action to collect arrearage amounts ordered at any time.
In a case where there is no court order for child support, the custodial parent may obtain up to 4 years of arrearages prior to commencing an action for child support. NRS 125B.030 provides that where parents do not live together the parent who has physical custody of a child or children is allowed to recover a reasonable amount of the cost of support, care, maintenance, and education provided. This remedy has been confirmed by the Nevada Supreme Court holding that during the period of separation before a divorce has been granted, the custodial parent may recover support arrears from the non-custodial parent based on the time period that the child or children were not supported by the non-supporting parent. The court also noted that although this statute seemed to apply to couples who were never married, the court has the right to reserve determination on this question for consideration in the future. Where there is no court order for child support the 4-year statute of limitations period for bringing an action for support starts from the date of mailing a written demand to the non-custodial parent at his/her last known address. See NRS 125B.050(1).
Nonparents who have custody of minor children may also recover arrearages and retroactive child support. See NRS 125B.040. The obligation of parents for the support of minor children pursuant to NRS 125B.020(1) creates cause for action for support on behalf of either party’s legal representatives or third persons, public agencies who furnish support, or for the defraying of reasonable expenses in the provision thereof. See NRS 125B.040
Furthermore, a child support court order “follows the child” to whoever has physical custody of such child, and the child support arrearages will accrue to the person who had custody of the child at the time support payments became due. See NRS 125B.040(3). Such arrearages will remain due until all amounts have been paid in full. See NRS 125B.040(9).
In addition, similar to child support between parents in absence of a child support court order, likewise, the non-parent who has lawful physical custody of the child may recover up to 4 years of child support from the non-supporting parent. See NRS 125B.040(2).
In conclusion, even when a child has become emancipated, the non-supporting parent shall be obliged to pay arrearages due to the failure to pay support pursuant to a court order. See NRS 125B.100.
As can be seen from the above, several remedies exist for the recovery of child support such as between married parents not living together; unmarried parents; divorced parents; authorized non-parents who are legal representatives of minor children on behalf of their parent; as well as agencies or third parties who are responsible for the care of such minor children. Fortunately, these remedies are obtainable with or without a child support court order being in place providing the proper procedures are followed. The remedies available align with the Nevada statutory obligations by parents for the care of minor children and its public best policy to ensure that all children are adequately cared for.
What is Retroactive Child Support?
A child support order is a document signed by a judge following a child support hearing that mandates one parent pay the other back for expenses associated with child care. These costs are known as child support payments.
The parent who no longer has custody, known as the noncustodial parent, is responsible for paying child support. Each state has its formula for calculating the required child support payments, which depend on several factors, including the non-spouse’s income.
The judge typically directs the payments to be made prospectively in a child support order, which implies that the payment requirement only “kicks in” after the child support order is signed. However, a court may mandate retroactive child support payment in certain situations. A noncustodial spouse must then make retroactive child support payments to the custodial spouse. These payments cover costs associated with child care incurred before implementing the child support payment order.
When Does Retroactive Child Support Need to Be Paid?
The judge decides whether and when to provide retroactive support payments. In some circumstances, judges can order retroactive child support payments. A judge might require the noncustodial parent to fulfill the payments, for instance, if the custodial parent can show that they are financially necessary. The noncustodial parent’s attempt to avoid paying child support is another scenario in which a judge may approve retroactive child support payments.
For instance, a noncustodial parent may purposefully postpone the child support hearing without a valid reason. In these situations, a judge may mandate retroactive payments to “cover” the evasion period. Similarly, the court can mandate retroactive support if the custodial parent proves that the noncustodial parent concealed assets or money to avoid paying their fair portion of child support.
The amount of time that can pass before a state allows requests for retroactive child payments to be made. Certain states have time limits. For instance, Nevada’s maximum time for retroactive child support is three years. Thus, the custodial parent may obtain retroactive support for the three years immediately preceding the filing of the support request (often referred to as a “petition,” which is a document in which the custodial parent demands that the judge attend a child support hearing).
How Retroactive Child Support Payments are Calculated?
A judge considers the income (including investment) earned by the noncustodial parent during retroactive payments to determine the retroactive child support amount due. The judge may adjust the amount payable based on whether the noncustodial partner earned significantly more or less than the custodial spouse during that time.
The court will also consider the noncustodial spouse’s potential “unofficial” child support payments made when the retroactive payments are requested. “Unofficial payments” are paid without a court’s approval. The parents voluntarily agreed upon the amount the noncustodial parent would pay during the retroactive period. A judge may use the payments made during that time to “offset” the retroactive child support amount that must be paid.
Factors Considered in Determining Retroactive Child Support
Deciding on retroactive child support involves looking at various factors to ensure a fair and reasonable outcome. Courts consider several key elements when determining retroactive child support payments. These factors help assess the financial responsibilities that should have been met in the past.
Here are some considerations:
- Income of the Parents: The financial situations of both parents are crucial. The court examines their income, including salaries, bonuses, and other sources of earnings. A thorough analysis ensures a fair contribution based on each parent’s financial capacity.
- Parenting Time and Responsibilities: The amount of time each parent spends with the child and their level of involvement in the child’s life are considered. The goal is to acknowledge and support the efforts of both parents in raising the child.
- Financial Contributions to Date: Any financial support the noncustodial parent provides before the court order is assessed. It also includes voluntary contributions or informal agreements reflecting the parent’s willingness to support the child financially.
- Changes in Circumstances: Significant changes in either parent’s financial or personal circumstances can impact the retroactive determination of child support. It includes job loss, promotions, or changes in living arrangements.
- Legal and Factual Considerations: The court reviews the legal and factual aspects of the case, ensuring that the retroactive child support order aligns with relevant laws and regulations.
- Child’s Best Interests: The court prioritizes the child’s best interests. The goal is to provide adequate financial support to ensure the child’s well-being and development.
Each case is unique, and the court carefully weighs these factors to make a fair decision. It’s essential for parents involved to provide accurate and detailed information to facilitate a just determination of retroactive child support. Our attorney at Huggins Law Office will guide you if you want to know more about retroactive child support.
How Can I Get Retroactive Child Support?
Like regular child support, noncustodial and custodial parents may freely agree (contract to each other) on a retroactive child support payment plan. If the noncustodial parent disregards the agreement, the custodial parent may request a hearing to have the judge implement its provisions.
If the parties cannot reach a mutual agreement, the custodial spouse has the right to ask for a hearing on retroactive child support. Such claims must be backed up by proof. Documents attesting to the noncustodial spouse’s concealment of assets are examples of such evidence.
The Role of Family Law Lawyers in Defending Your Parental Legal Rights
Family law attorneys are essential in assisting clients in navigating the complex issue of retroactive child support for children who are now adults. They offer legal guidance by outlining relevant laws and ensuring clients know their rights and obligations. To reach a just settlement that takes the adult child’s best interests into account, attorneys assess each case on an individual basis using detailed financial disclosure and offer advice during negotiations or mediation.
Should the case proceed to trial, lawyers argue their client’s position and offer strong evidence to support it. They also support clients through the required legal process, assisting with compliance, enforcement, modification, and appeals.
The Legal Process for Getting Retroactive Child Support
It’s crucial to remember that the precise legal process and conditions for acquiring retroactive child support can change based on the jurisdiction and the situation. To understand the stages of a case, you should speak with a family law attorney knowledgeable about the laws in your area.
An overview of the procedures usually required in submitting a court application seeking retroactive child support is provided below:
- Speak with a Family Law Attorney. The first step is to speak with a family law attorney focusing on child support cases. They will review your case, determine whether it might be worthwhile to pursue retroactive child support, and then walk you through the legal process.
- Gathering Documents. Your attorney will help you obtain the required documents to support your request for retroactive child support. These might include financial records, paternity records, medical records, school expenses, and any other records showing the necessity for retroactive support.
- Evaluation of the Retroactive Support Period. The time frame during which retroactive child support is requested is the evaluation period. The custodial parent’s awareness of the noncustodial parent’s financial situation, the child’s age, and any other relevant information are considered.
- Determining Retroactive Child Support Amount. To calculate the retroactive child support amount due, the court will consider several factors, such as the child’s needs, the noncustodial parent’s income and financial situation, and any mitigating circumstances.
- Settlement Agreement or Court Order. A settlement agreement or consent order will contain the contents of any agreement achieved through negotiation or mediation. If the matter goes to court, the judge will issue a court order specifying the terms and conditions for retroactive child support.
- Compliance and Enforcement. Once it has been established, it is crucial to ensure compliance with the provisions of a court order and settlement agreement. If the noncustodial parent doesn’t pay their share of the expenses, the custodial parent could have to take the necessary legal action to execute the order.
Here are some frequently asked questions.
How is Retroactive Child Support Calculated?
The calculation typically considers the noncustodial parent’s income during the retroactive period and may consider the child’s needs. Courts may use guidelines or factors like income, expenses, and the child’s standard of living.
Can Retroactive Child Support be Ordered in Any Situation?
Retroactive child support is usually ordered when the noncustodial parent fails to provide financial support before an official support order is in place.
What Happens if the Noncustodial Parent Can't Afford Retroactive Child Support?
Courts may consider the noncustodial parent’s financial situation and can sometimes establish a payment plan or adjust the amount based on their ability to pay while still addressing the child’s needs.
Do I Need an Attorney to Get Retroactive Child Support?
You should speak with a child support lawyer if you are due retroactive child support payments. A knowledgeable child support attorney in your area can assess the specifics of your case, provide legal advice, and represent you in court and during hearings.
Call our law firm at (702) 387-4014 for consultation and questions or more information.