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Q: I am being sued for child support. I have been told that I will have to pay arrears, because the support will be awarded retroactively. Is that right?

A: Although child support may be paid to a custodial parent, it is a right of the child. Legal action seeking an award of child support is usually brought by a parent for benefit of a child. The parent cannot waive or affect right of the child to support, event through a negotiated written agreement with the other parent.

At common law, a child is entitled to support retroactive to the date of birth. Under that rationale, Florida courts award child support retroactive for a decade or more. In 1997, the legislature limited retroactive support to the date when the parents did not reside together. In 1998, the limitation was expanded to limit retroactive awards to a period of 24 months preceding the filing of the petition.

The discretion of the courts to award retroactive child support is now limited 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. The statute also mandates that the court consider an installment payment plan for retroactive child support.

Where a case is in litigation for a long time, the award may be retroactive to a date more than two years prior to the order or judgment, as the only time limitation is two years from date the petition for support is filed with the court.

Retroactive award of child support is not automatic, it’s discretionary with the court. The court is to review the child’s need and the parent’s ability to pay. The Florida Supreme Court has considered three equitable defenses to a claim for retroactive support: 1) direct payment has been made to the custodial spouse or another person, directly or indirectly, on behalf of the child; 2) the minor child reaches majority, marries, enters the armed services, dies; or 3) a full change of child custody has occurred and the former custodial parent no longer supports the child or retains physical obligations relating to the child. The defenses are not exclusive. There may be other circumstances justifying a reduction or refusal to award retroactive support.

The retroactive award of support is based upon the concept that both parents owe a duty of support to their children. Failure of one parent to seek support for the child does not eliminate the obligation. And, since the right to support belongs to the child, the custodial parent cannot waive that right by inaction or otherwise.

Modifications of child support can also be granted retroactively, but not to a date prior to the filing of the petition for modification. This applies equally for requests for increased support and to reduce support. As a result, delay in petitioning for modification is problematic for both parents.

If the receiving spouse is slow to petition, he or she will only receive an increase retroactive to the date of filing. If a paying spouse merely reduces the amount of payment because of financial problems, he or she will find that the unpaid child support is a vested right of the child and that any modification will only be retroactive to the date the petition is filed.

When retroactive modification is ordered, it can be a substantial and unexpected hardship to the obligor. Not only is the obligor ordered to pay more child support, but is also ordered to pay an arrearage equal to the increase that would have otherwise been due from date the petition for modification was filed. The court usually orders a payment plan for the arrearage, but the resulting payment obligation can be a huge increase, not budgeted by the paying parent. Where the paying parent is indebted with credit cards, mortgage and car payment, paying all bills can become an instant problem.

In these cases, the court’s attempt to create a solution that will result in the correct payment amount with as little harm as possible to all parties. This makes it important that both parties be represented by competent attorneys. In many cases, the attorneys can resolve the issues without a court hearing. In others, experienced counsel can offer flexible and innovative solutions for consideration by the judge. I recommend you retain an experienced family law attorney as soon as possible.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.