Establishing a Child Support Order for the First Time
If you're just starting a legal proceeding that involves child support, whether it's related to a divorce, legal separation, maintenance, or child support action, and there is no prior child support order in place, then child support can claimed as far back as either: (1) the date of the parties' physical separation, (2) the filing of the petition, or (3) service of the petition upon the respondent, whichever date is latest. See C.R.S. § 14-10-115(2)(a).
In other words, the latest occurrence of the three things mentioned above is the answer to how far back child support can be claimed. So if you physically separate first, file the petition second, and serve your spouse third, then child support can be claimed as of the date you served your spouse (or the date you received service of process). Alternatively, if you file the petition first, serve your spouse second, and physically separate third, then child support can be claimed as of the date you physically separated.
The issue of how far back that child support can be claimed was litigated in El Paso County, Colorado as recently as 2021 in the case of Stradtmann v. Stradtmann. In that case, the parties physically separated in February 2019, the father filed for divorce on March 14, 2019, and mother signed the waiver of service on March 28, 2019. Pursuant to the final divorce decree, the court made father pay retroactive child support going back to February 2019 (i.e., the date the parties physically separated). The father appealed, arguing that the latest of the three dates to award back child support was March 28, 2019, the date that mother signed the waiver of service.
The appellate court agreed with father and vacated the portion of the permanent orders requiring father to pay child support retroactively to a date before March 28, 2019. In re Stradmann, 506 P.3d 77 (Colo. App. 2021). The father was not successful, however, in arguing that the same legal standard applied to the order requiring him to pay retroactive spousal support as of February 2019 (i.e., the date of separation). The Colorado maintenance statute provides that spousal support can be awarded for a term dating back to before filing of the divorce petition. Therefore, father only had to pay retroactive child support as of the date that mother received service, but he was on the hook to pay alimony retroactive to the date the parties physically separated.
How Far Back can Child Support be Claimed when Modifying Child Support
The provisions of any decree respecting child support may be modified only as to installments accruing after the filing of the motion for modification. See C.R.S. § 14-10-122(1)(a).
That means that if there's already an existing child support order in place, and you or your ex wants to modify the dollar amount of child support paid, then the new child support amount can only be modified as far back to the date that you filed the motion for modification. In other words, if a motion to modify child support is filed on January 1st, and the court doesn't modify child support until July, then the new child support amount will be effective going back to January 1st when the modification motion was filed.
If you require assistance with your child support claim, please don't hesitate to contact us.