When Does Child Support Start?

You have made the decision to get divorced.  You have retained an attorney, filled out Net Worth Statements, and finalized the terms of your divorce, but then you find out that you that you are behind in child support payments! How can this be!? Why!?

Domestic Relations Law (“DRL”) §236B7 is why.  DRL§236B7 provides that “…such order shall be effective as of the date of the application…, and any retroactive amount of child support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which had been paid.”  In other words, you are liable for child support as of the day the Complaint for divorce was served and not when you settled.  For example, your spouse filed for divorce and you were served with papers on January 1, 2024.  Your divorce was finalized January 1, 2025.  If you did not pay for any child support as of January 1, 2025, you are in arrears for 12 months of child support.

In calculating any back child support that is due, the court will take into account any temporary support payments that you made pending the divorce.  For instance, if it is determined that you are in arrears $10,000.00, but you are able to demonstrate that you have been paying child support every month for a total of $7,000.00, then you are only in arrears for $3,000.00 per month.  However, if you overpay, you will not get a credit or refund no matter the amount you overpay.

Any back child support must be brought current.  However, in the Court’s discretion, you may be allowed to break up your payment into monthly installments in addition to the Court ordered support.  For example, if you are ordered to pay $1,000.00 a month in child support but owe $12,000.00 in back child support ($1,000.00 x 12 months=$12,000.00) the Court, in its discretion may permit you to break up your child support arrears over time as it seems appropriate.  Consequently, you will still pay the $1,000.00 Court ordered support, but you will also be required to pay another $1,000.00 a month for your back child support until you are current. In the above example, you will be paying $2,000.00 per month for one year until the $12,000.00 in arrears is paid off.

To avoid any arrears, you should keep detailed records of all child support going to your spouse during the divorce process.  If you can, create a paper trail.  Pay your spouse with a check or money order and indicate what the payment is for.  Understand that if you are not the custodial spouse, meaning the children do not reside with you the majority of the time, you will be liable for child support.  Speak to your attorney about potential child support liabilities and plan accordingly.