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Back Child Support Laws in Texas

March 2, 2012

The legal term for back child support in Texas is “retroactive child support.” There are two situations in which retroactive child support is available: in situations where the obligor (the person who pays the support) has never been ordered to pay support and in situations where they have. This blog will address the former situation.

One thing to keep in mind when addressing retroactive child support issues is that a court does not have to award it. It is purely discretionary and may depend upon the facts in the bigger picture of the case.

According to the statute, the court shall consider the net resources of the obligor during the relevant time period and whether:(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;(2) the obligor had knowledge of his paternity or probable paternity;(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor’s family; and (4) the obligor has provided actual support or other necessaries before the filing of the action.” Tex. Fam. Code 154.131.

Here are some key points about retroactive child support:

How much can be awarded? The answer depends upon the obligor’s net resources during the time period claimed. For more information on calculating child support and net resources, please refer to my blog Net Resources and Child Support.

How many months and years can be awarded? There is a presumption that retroactive child support for the prior four years is reasonable and in the best interest of the child. Support for additional years can be awarded with evidence that the obligor: “(1) knew or should have known that the obligor was the father of the child for whom support is sought; and (2) sought to avoid the establishment of a support obligation to the child.” Tex. Fam. Code 154.131(d).

What if the obligor has been paying, just not under a court order? According the statute, the court must consider evidence of support actually paid. For example, prior support would be paying for medical bills, helping with clothing, food and summer camps or money spent while the child was in possession of the obligor. The presence of some evidence showing prior support paid does not mean the obligor is entitled to a credit. It is up to the court to determine if he or she is entitled to an offset. For example, the Appellate Court in Amarillo upheld a judgment that did not give the obligor a credit for support paid because there were facts to support its finding that the money paid was to further an affair with the child’s mother, not to support the needs of the child.

How long can someone wait to file for retroactive support? Four years after the child’s 18th birthday is the deadline to file a petition seeking retroactive child support. That is a long time to wonder if you could be charged with retroactive support. Theoretically, an argument could be made that 18 years of retroactive support should be awarded if the facts fit the law. There are many judgments that have awarded 18 years of retroactive support and have been upheld on appeal.

Despite the uncertainty of how much retroactive child support, if any, can be awarded, the law is such that its advisable not to rely on its availability and not to trust that just because you have avoided child support thus far, that you can avoid it forever.


From → Child Support

  1. Theresa Dilworth permalink

    July 31, 2013
    Dear Ms. Decker

    This was most helpful and I will follow your blog in the future.
    However if I could ask your advice on a matter, I’m wondering how to resource a conundrum I have been in for some time. My daughters (who is now 31) father, who now resides in the state of Texas, has been avoiding a court established child support order since Crystal was 9 the age she was when it was first initiated. The order was established in the state of Washington and facilitated by the Washington State Support Enforcement office. Then in 2007, Joe (her father) which up until this time had relatively stayed under the radar, by constantly being on the move, using his brothers identity to work and acquire proper documentation to drive a semi-truck, and using alias names when questioned by police as he did not want to return to jail.
    In the past Joe had been fined and jailed on several occasions while residing in Newark NJ, and too while living in Albany NY, where he moved in early 2000. Joe has always been an inactive force/participant in Crystal’s life and a financial non-supporter.
    In early 2005 Joe began to work , the state of NY then began to garnish his checks, but Joe learned garnishments would stop being taken from him temporarily if not indefinably if he filled a motion to dispute the balance owed, because during this process there would be no garnishments until a decision had been made. At this point I had never received one court ordered amount of $435, as he never either stayed employed long or couldn’t cover the court ordered amount to pay with his wages.
    By 2007 the audit had been completed and Joe then started action to have monthly support amount lowered. The judgment was ruled in my favor of upholding the amount of the original order of $435, Crystal was then 25. Joe soon after the judgment quite his job and did not continue working until about 2 years ago when he relocated to San Antonio, TX, but NY was still facilitating, the order. I actually received 3 consecutive court ordered payments for the first time since our daughter was born, she was then 29.
    Joe then relocated to Texas, delaying payment once again. In March of 2012 payments began again but they were random not meeting the court ordered amount. But in September of that year Joe became quite upset when half of his wages were being taken; NY was still facilitating and collecting on the order. Then NY learned Joe had reestablished himself in Texas. NY then turned the case back over to WA. State for collection as it was the originating state of the order. Washington being a statute of limitations state could not collect the debt, so WA requested that Texas collect on the debt. Texas has agreed to collect the retroactive amount due, but they are not collecting the monthly court ordered amount due. Is there any recourse I can take?
    Joe is a very slippery guy as his paper trail can contest, and always has an angle as to not have to pay his rears. So I called him and asked him directly about the payment of $300 being received instead of the court ordered amount and he stated that it was 2013, our daughter was now 31 and he shouldn’t have to pay at all. Also that I should get a job, not be greedy and be happy with what I was getting that…no actually he said “you’re lucky you’re getting anything at all”.
    So I then began to research the facts about Texas law regarding the matter and came upon your blog. Can you lend your council, advice, direct me in the right direction? WA. State says Texas is facilitating the case and there is nothing they can do and Texas won’t speak with me because I have to go through my case worker in WA. state so I am left now being owed over $42,000 and the more time that goes by the less empathic the laws and individuals working for the facilitating state regarding my case has become and the more likely it is going to be he will never have to repay this debt if he waits long enough
    I am at a fork in the road without a map…could you please help me?

    Thank you in advance for your time and consideration as I have been unable to work due to illness and I figured this money was owed to me for taking on both our responsibilities for many years. I even sent her through her first two years of college, now that I have nothing it feels like what is due will soon be relinquished in some way as the established payment has already been diminished by Texas for some reason.

    Thank you again for the information you have already afforded me, I just need to do what I can as to not allow him amnesty, it’s just not fair or correct.

    Theresa Dilworth

    • Theresa, I apologize. I just discovered the Comments section of my blog and didn’t realize that you had sent me such a long request. Since I advise clients who have entered into a representation agreement with, I cannot comment. Please call me if you would like to discuss this further. (81) 336-2400.

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