No Retroactive Child Support Prior to Filing a Motion [Request] for Modification
The governmental response to the public health crisis of this pandemic has forced an unprecedented number of California businesses to change their business model or close their doors. It is no surprise that the result of these changes and closures has been a reduction or loss of income for many Californians.
Parents on both sides of child support orders are feeling the resulting financial strain.
Under normal circumstances, parents simply file a request to modify child support when their financial circumstances change, and the family court may modify their support order accordingly at a hearing. This is the case whether it is the custodial parent (parent receiving child support) who is going through financial hardship and requesting the child support order increase, or it is the non-custodial parent (parent paying child support) who is going through financial hardship and requesting the child support order decrease.
The only problem is that California family courts and the Department of Child Support Services (DCSS) were heavily impacted by this public health crisis too, and they are dealing with tremendous backlog resulting from the shut-down earlier in the year, as well as continued limited operations for the foreseeable future.
Many struggling parents are not filing a request to modify their child support order because they believe, and they are correct, that they will receive no relief in the near future. Even if a request (motion) to modify support is filed today (August 18, 2020), the hearing may not take place for months. In the meantime, the support order remains unchanged.
So what is the point of filing now? Why not just wait until the courts are running normally so that you can hire an experienced child support attorney and get a hearing to explain your hardship then?
First, there is no way of knowing when the court will be “running normally” again. Second, the longer you wait to file the request (motion) to modify support, the less relief you will get when you finally have the hearing on the request. This is because when you file a motion (request) to modify support, you are preserving the court’s jurisdiction to modify your order “retroactively” back to the date of filing.
With exceptions not relevant to this article, Family Code 3653 (a) provides:
“An order modifying or terminating a support order may be made retroactive to the date of the filing of the notice of motion or order to show cause to modify or terminate, or to any subsequent date[.]”
Avoid Child Support Arrears by Filing a Modification Request Today
Filing for a modification of support is extremely important if your financial circumstances have changed because state law prohibits the Courts from retroactively modifying a support order, even under the current crisis.
It is imperative to file for a modification of support soon after a job loss or significant pay reduction because the Court can’t back-date modifications. Thus, if you stop paying your court-ordered support, you will not be able to avoid accumulating arrears. Unpaid support arrears accrue interest at a rate of 10% per annum, and cannot be discharged by a bankruptcy attorney in bankruptcy proceedings, and there is no statute of limitations on unpaid support.
Even further, failure to pay court-ordered child support may result in quasi-criminal charges if a family law contempt attorney files an Order to Show Cause re Contempt.
The principle behind this bright-line rule is that accrued child support is vested, and cannot be modified at a later time. The remedy for a too-high or too-low support order is prospective modification.
This rule is further expressed in 42 U.S.C. 666 (a)(9)(C), “retroactive modification of support order only permissible to date that notice of a pending petition for modification has been given” and Family Code section 3651 (c)(1), “a support order may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.”
Family Code Section 3603 likewise states, “[a]n order made pursuant to this chapter may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.”
“The filing date, in other words, establishes the outermost limit of retroactivity.” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595)
In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 639 “A court acts in excess of jurisdiction ‘where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.”
Do not assume that the state Legislature will come to your rescue with emergency legislation to provide relief for parents with support orders. If your financial circumstances have changed, whether you are currently paying or receiving child support, you should consult with an experienced family law attorney.
If your income has been affected by the public health crisis, you can file for a modification of child support and or spousal support now. Parents can rely on the experience of our child support attorneys to guide them through the process and reach the best result.