Until a few years ago, child support in a divorce case could only be ordered beginning as of the date the divorce was filed, or generally the first day of the month AFTER the filing. Under the old statute, if a couple separated in January but the divorce was not filed until mid-September, the court only had authority to order child support effective October 1.
Retroactive Child Support
Under the current statute, however, the court has authority to order child support retroactive to the date of separation, “but not more than three years before the date of the filing . . . .” A.R.S. Sec. 25-320 C. This statutory change was needed to create consistency between divorce child support cases and out-of-wedlock child support cases. For years before the 25-320 statute was modified to allow divorcing parents to seek retroactive child support, a parent of a child born out of wedlock was able to seek child support retroactively for three years (in most cases). In either case, whether a divorce/custody case or the case of a child born out of wedlock, the court will consider direct payments made voluntarily by the non-custodial parent and may give credit for those payments against the retroactive obligation.
Child support MODIFICATIONS, however, may NOT be made retroactively. The earliest a child support modification may be effective is generally “on the first day of the month following notice of the petition for modification . . . .” A.R.S. Sec. 25-327 A.
Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.
