Usually we think of child support and spousal support as obligations that extend out into the future. It’s also possible though for them to extend back into the past. Past due support is called arrears. Support arrears can either be court-ordered or negotiated without the court’s involvement.
Negotiated Support Arrears
Many couples try to work out their own divorce agreements, either on their own or with a divorce mediator. These agreements often include the interim financial arrangements (such as support) that will apply until the divorce goes through.
Once the couple has separated, these arrangements are often very important. There may be agreements as to who pays what bills. Or sometimes a monthly support amount will be agreed. If the separation occurred before these arrangements were worked out, there may be an agreement for support arrears going back in time (perhaps to the separation) and when they will be paid.
Couples also often work out agreements for child support and spousal support that will apply after the divorce. When support is specified in a negotiated divorce agreement, the support becomes a court order when the judge signs the divorce judgment. This applies both to support for the future and negotiated support arrears.
Court-ordered Support Arrears
When a divorcing couple can’t reach agreement and a judge decides child support or spousal support, it can be made retroactive only as far back as the date of the divorce petition. This can therefore be a consideration when deciding when to file the petition.
Sometimes a spouse or former spouse will file a motion with the court to change a court-ordered child support or spousal support amount. If the court decides to change the support amount, the revised amount can apply retroactively no earlier than the date the motion was filed. The same applies to motions to terminate spousal support. If the court enters a retroactive order decreasing or terminating support, it may order the support recipient to reimburse any amounts paid under the prior order that exceed the amounts due under the retroactive order.
Collecting Support Arrears
It’s also possible (and unfortunately too common) for the payer to get behind on support payments. Past due, court-ordered support is subject to having interest tacked on by the court. The legal rate of interest in California has been 10% for many years. Getting behind on support can quickly result in a large amount of arrears.
There are various avenues that can be pursued to try to collect support arrears.