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Retroactive Child Support

On March 5, 2018

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A popular question form clients is “Can I get retroactive child support?” As with many legal questions, it depends.

The first factor is what kind of case is it.  In an original suit where child support has never been requested the family code allows for support to be made back to the date the parties separated.  Specifically, Texas Family Code §154.009(a) states: “The court may order a parent to pay retroactive child support if the parent: (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.”  Texas Family Code §154.009(e) further states “in rendering an order under Subsection (d), the court may order retroactive child support back to the date of the separation of the child’s parents.”

In a modification case, the Court may award retroactive child support, but only back to the date of the filing of the modification lawsuit. Texas Family Code §156.401(b) states: “A support order may be modified with regard to the amount of support ordered only as to obligations accruing after the earlier of (1) the date of service of the citation; or (2) appearance in the suit to modify.”  This is why it’s important to file suit as soon as possible when you become aware that a modification of child is warranted. Keep in mind though,  the law says may.  In In re Naylor, 160 S.W.3d 292 (Tex.App–Texarakana 2005) the appellate court stated “a trial court has broad discretion to set the effective date of a modified order.”  The appellate court specifically stated that one of the purposes of the rule was to prevent litigates from delaying a trial on child support to prevent paying the new amount sooner.

While the law allows for this, you won’t get it if you don’t ask. The right to receive retroactive child support must be plead for. In Martinez v. Martinez, S.W.3d 589 (Tex.App. San Antonio 2001), the appellate court overturned an award of retroactive child support in the absence of a pleading requesting it.

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