(a) Retroactive support in a new support action shall be presumed at 6 months prior to the date of filing. The burden of proof shall be on the party seeking greater or lesser retroactivity. Retroactivity shall not exceed 24 months prior to the date of filing.(b) Retroactive support shorter or longer than 6 months is determined by the totality of the circumstances. Whether or not the value of direct, in-kind or other support provided is comparable to the amount indicated by the Formula is not conclusive of whether retroactive support should be awarded. Factors to be considered include but are not limited to whether:
(1) The parent has:
(i) The ability to pay;(ii) Been aware of the possible parentage;(iii) Other children to support;(iv) Avoided service of process;(v) Meaningfully contributed financially or in-kind to the care of the child and whether those contributions were realized within the child’s primary residence;(vi) Been incarcerated, institutionalized, hospitalized or otherwise involuntarily absent from the workforce.(2) The party seeking support has:
(i) Exercised due diligence in pursuing legal remedies;(ii) Made requests for assistance that have gone unheeded; (iii) Incurred debt to compensate for the lack of support from the other parent.(3) The child or children have special financial needs;(4) The parents’ finances have been intermingled including if the child has resided in a home to which the parent has provided material support; and(5) The parties have or had a formal or informal support agreement and whether the agreement was honored.(c) Retroactivity prior to the filing date shall not be awarded for any period of incarceration subject to the exceptions contained in Rule 501(k), or incident to foster care placement.(d) Retroactive support should be repaid at a rate equal to 20% of the most recent calculation of current support (but not less than $20) if: (3) Current support is not ongoing but the retroactive support is owed to the State. In all other instances repayment shall approximate the amount that would have been due if current support had been ongoing. Deviation may occur by agreement, upon subsequent or repeated contempt for non-payment, or for good cause shown.
(1) Current support is ongoing; (2) Current support is not ongoing but the subject child or children reside in the home of obligated parent; or (3) Current support is not ongoing but the retroactive support is owed to the State. In all other instances repayment shall approximate the amount that would have been due if current support had been ongoing. Deviation may occur by agreement, upon subsequent or repeated contempt for non-payment, or for good cause shown.
Del. Fam. Ct. R. Civ. P. 509
Deleted eff. April 20, 2015; amended November 8, 2018, effective February 1, 2019.
