Retroactive Child Support in Wisconsin

Introduction

When parents of minor children separate, either a separation leading up to a divorce or a relationship breakup between unmarried parents, a common question family law attorneys get is “How can I get back child support for the months that we were separated and did not receive financial support for the child?”

Back child support, also known as retroactive child support or past support, is a frequently misunderstood aspect of Wisconsin family law. Parents are often surprised to learn that child support obligations may extend backwards in time rather than beginning only when a court order is entered.

Parents are also often surprised to learn that back support does not automatically extend to the breakup period, and they might not be entitled to as much as they think.  

This article explains how retroactive child support works in Wisconsin, when it may be ordered, how courts calculate retroactive amounts, and what statutory limits apply. Understanding these rules is critical for parents seeking support and for parents facing potentially significant arrears.  

Retroactive Child Support (Past Support or Back Child Support) vs. Child Support Arrears

Before addressing liability and the right to receive, it is critical to distinguish between back support and child support arrears.  

• Back Support, or Retroactive Child Support: Support ordered for a time before any child support order existed.
• Child Support Arrears: Unpaid support that accrues (accumulates or builds up) after a valid support order is in place.  

Wisconsin courts treat these concepts differently. Arrears are strictly enforceable once ordered, while retroactive or back support is subject to statutory authorization and judicial discretion.  

Statutory Authority for Retroactive (Past) Child Support

The authority to impose retroactive child support in Wisconsin primarily derives from the statutes governing child support in divorce and paternity actions. Key statutes include:

• Wisconsin Statute 767.511 – This is the general child support statute that grants authority to order child support and to apply a percentage standard.
• Wisconsin Statute 767.804(4) – Liability for past support due to genetic test results,
• Wisconsin Statute 767.805(4m) – Liability for past support due to voluntary acknowledgement of paternity,
• Wisconsin Statute 767.89(4) – Liability for past support due to paternity judgment.  

These statutes establish that a parent’s obligation to support their child or children can extend before an official court order is entered regarding child support.  

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Retroactive (Past) Child Support in Paternity Cases

Retroactive support is most common in paternity actions, although it can also happen in divorce cases. The law attempts to balance a child’s right to financial support with fairness concerns for parents who face a large, delayed support claim.

The general rule for past support is “liability for past support is limited to the period after the birth of the child.” In no event may liability for past support of the child be imposed for any period before the birth of the child.  

Beyond the above general rule, the subsequent general rule for past support is that “liability for past support of the child shall be limited to support for the period after the day on which the Petition, motion, or order to show cause requested support is filed in the action for support.” This generally means that support can be ordered retroactive to the date the case is filed or to the date a motion is filed in the case.  

In a hypothetical case, Parents A and B, who are unmarried, have a child together. The parents separated in February of that year. Parent A files for paternity to be established in July of the same year.

The parties do not have their first court date until November of that year, in which the Court orders child support. The Court can order that child support be effective starting in August of that year, as August is the first month following the order's filing.  

Liability for Past Support When Induced to Delay Commencing the Paternity Action

There may also be liability for past support from before the filing of the underlying action if the moving party can demonstrate that they delayed filing the action. Reasons that Wisconsin Paternity Statutes allow are:

• Induced to delay the commencement of the action by duress or threats,
• Induced to delay the commencing of the action by actions, promises, or representations by the other party upon which the party relied,
• Induced to delay the commencing of the action by actions taken by the other party to evade proceedings to initiate the action.  

To obtain support, after one of the above has occurred, the moving party cannot unreasonably delay in commencing the action.  

In a hypothetical, if Mother to a child does not start an action because the father of the child promised to provide support, and the mother relied on Father’s promise, and later Father failed to provide the promised support, the mother may ask for past support to the date of Father’s original promise.

Mother could not unreasonably wait a period of time after Father’s failure to provide the promised support.  

Liability for Past Support in Divorce Cases

Past support can also be an issue in divorce actions. When parents separate, and no temporary child support is entered, courts may later address unpaid support for the interim period between separation and the temporary order.  

Under Wisconsin Statute 767.225, courts may issue temporary child support orders during the pendency of the family court file. If no temporary support is entered, courts still retain the ability to allocate support obligations for that period.

Courts are generally cautious about imposing past support obligations in divorce cases where both parents contributed informally to the children’s expenses, or when parties mutually agreed to temporary financial arrangements.

Similarly to Paternity actions, the general rule is that past support can be ordered back to the date of filing of the underlying action.

As a hypothetical: Husband and Wife physically separate in February, Wife has the children and files for divorce in May and requests child support, the parties do not have their first Court appearance until August, where the Court orders child support.

The court may order child support to begin in June (the first month after the divorce is filed). There would exist a back support arrears totaling three months (June, July, and August).

Credit for Past Support or Voluntary Support

A parent facing retroactive or past support obligations may receive credit for voluntary payments made before the court order setting child support and retroactive support payments.

Under Wisconsin Statute 767.511(1m), courts may consider payments made directly to the other parent or expenses paid on the child’s behalf, such as daycare costs, medical expenses, or housing and food support.

It is important to note the types of payments referenced above. Not all payments and costs will be considered by the Court to count towards past support obligations.  

Conclusion

A parent can be legally liable for retroactive or past support obligations in Wisconsin, particularly in paternity cases where no prior support order existed. That liability is firmly grounded in statute but is generally limited to the date the underlying action is filed.  

Courts consistently emphasize accurate income determinations when setting a child support amount and can credit a parent for voluntary support payments made before a court order setting child support.

Because retroactive or past support can involve substantial sums, understanding the governing statutes and case law is essential for both parents seeking support and those facing past support liability.  

Contact O’Flaherty Law today to schedule a consultation. Let us guide you through the process with clear advice and trusted support.

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