For pre-judgment dissolution of marriage cases, the courts have consistently upheld retroactive support orders to the date of the filing or the date of service of the Petition for Dissolution of Marriage. The Court in Rogliano v. Rogliano, 198 Ill. App. 3d 404, 555 (5th Dist. 1990) ordered the husband to pay the wife the amount of $700 a month for the period of time since the filing of the petition for dissolution of marriage until the entry of the temporary order of support was entered. Since Rogliano, several other courts have followed suit. The Court in Toole v. Toole, 273 Ill. App. 3d 607, 618 (2nd Dist. 1995), held that the trial court did not abuse its discretion when it ordered the husband to pay retroactive child support from the filing of the petition for dissolution of marriage which was over two and one-half years prior. The husband had argued that the children were now emancipated and therefore he was not responsible for paying child support anymore. However, the Court found that not ordering retroactive support for the time when the children were minors would be a windfall to the husband and would give non-custodial parents a reason to delay the proceedings.
In pre-judgment parentage cases, the trial court is charged with determining whether and to what extent the obligor should make payments of retroactive support pursuant to 750 ILCS 24/14(b). The factors a court must consider include, but are not limited to: (1) The father’s prior knowledge of the fact and circumstances of the child’s birth; (2) The father’s prior willingness or refusal to help raise or support the child; (3) The extent to which the mother or the public agency bringing the action previously informed the father of the child’s needs or attempted to seek or require his help in raising or supporting the child; (4) The reasons the mother or the public agency did not file the action earlier; (5) The extent to which the father would be prejudiced by the delay in bringing the action.
In Jassen v. Turner, 292 Ill. App. 3d 219 (4th Dist. 1997), the Court held that it is perfectly reasonable for the trial court to award retroactive child support back to the date of the child’s birth, and the failure to do so “encourages delay tactics and defeats the intent of the legislature.” Id. at 225.
As a result of what can be an enormous retroactive child support award, one practical advice is to enter into a child support order from the outset of the parentage case or dissolution case, even if it is only ordered on a temporary basis. If the other party did not reserve the issue of retroactive support, a court may find that he or she has waived the issue and deny it. Alternatively if you are the custodial parent, you may want to delay the issue of a temporary support order or make sure that the issue of retroactive support is reserved.