52-year-old R. Kelly can’t seem to keep himself out of the headlines, especially recently. The many lawsuits against Kelly began in the mid-1990s and continue through present day. In January 2019, Lifetime began airing its docuseries, “Surviving R. Kelly,” which speaks to more than 50 people with allegations against Kelly. The docuseries then prompted even more accusers to come forward and tell their stories regarding R. Kelly. In February 2019, Kelly was charged on 10 counts of sexual abuse, entered a not guilty plea on all 10 charges, and was released on bail.
All of this leads up to his most recent arrest that falls right into the middle of the family law topic of child support. In March 2019, Kelly was arrested again; this time for failure to pay child support. Kelly owes over $160,000 to his ex-wife and their three children. The Cook County Sheriff’s Department announced that he would remain in jail until the debt was paid. In an interview with Gayle King, Kelly became enraged when the topic was brought up, claiming he couldn’t pay child support because his name has been destroyed and he can’t work.
With celebrities like R. Kelly in the spotlight, it is an opportune time to discuss the legal implications and facts regarding child support as a family law attorney. Although the situation leading up to it will most likely be very different than that of Kelly’s, the issue of child support is quite common.
First, it is important to understand the three different types of child support. The most common form is called the Child Support Obligation, or prospective child support into the future, which is a certain amount to be paid each month from one party to another. The amount of support is established through a host of variables, but is based on the parties’ gross monthly income versus who has physical custody when and for how long.
The second most common form of child support is referred to as Child Support Arrearages. A party is entitled to a child support obligation as soon as the child is born, but Child Support Arrearages is the amount of child support obligation a party should have received from the moment the lawsuit is filed and up until the time that a child support obligation order is put in place. For example, if the child support obligation is set at $100 per month and it has been 5 months since you filed your complaint for child support, then you are entitled to receive the $500 that you were not paid during that time. The judge could make the debtor parent pay the $500 within 30 days or may order that the debtor parent pay $200 per month ($100 for the ongoing obligation and $100 towards the arrears) for the first 5 months and on the 6th month, and thereafter, the debtor parent’s obligation would be reduced to and continue in the amount of $100, until further ordered by the court. In addition, if a party fails to pay any or all of their monthly child support obligation, those unpaid funds would also be considered child support arrearages because the debtor parent is “in arrears” on his/her obligation.
The third form of child support is called Retroactive Child Support. Retroactive child support concerns those expenditures that are incurred before a lawsuit is filed, including certain costs like hospital bills for the child’s birth. You are entitled to receive Retroactive child support so long as you can satisfy the legal elements set out in Loosvelt v. Brown. This was a 2014 case and the gist was that Mr. Loosvelt filed a lawsuit against Ms. Brown for child custody and child support. Ms. Brown then filed her answer and counterclaim seeking retroactive child support. In that case, the trial court awarded over $7,000.00 per month in child support obligation and approximately $40,000.00 in retroactive child support including around $5,000.00 in pre-birth nursery expenses and maternity clothes.
One party’s child support obligation arises when the child is born. However, our North Carolina Court of Appeals established that one party can recover expenses that are incurred before a child’s birth and/or before the lawsuit is filed. That Court stated that a parent may be obligated for “medical expenses incident to the pregnancy and birth of the child”, which would likely be categorized as retroactive child support. However, the statute of limitations (N.C. Gen. Stat. § 1-52(2)) limits a parent to no more than three years of retroactive support. So if you wait any more than 3 years to file your lawsuit after the child has been born, then you will likely not be able to recoup the costs you may have incurred with the birth of your child. Regardless, in order to be able to collect any retroactive child support, the parent seeking retroactive child support must present sufficient evidence of (1) past expenditures made on behalf of the child, such as bills, and (2) evidence that such expenditures were reasonably necessary.
So, are you allowed to be reimbursed for those hospital bills and diapers that you bought before you had to file a child support lawsuit?…Yes, so long as you can convince the Court that you incurred said costs and that said costs were reasonable and necessary.
For your reference:
- Retroactive Child Support — Pre-Lawsuit Expenses; the time before the lawsuit is filed
- Child Support Arrearages — Time between filing of the lawsuit up until a Court Order is entered
- Child Support Obligation — Time beginning after the Order is entered by the Court and continuing thereafter on a monthly basis
Every parent has an obligation to financially support their children. If you don’t, you could end up like R. Kelly.
As for R. Kelly, he was released from prison on March 9, 2019 after an anonymous person paid the Cook County Sheriff’s Office the full amount of the back-child care support that he owed. This may not come as a surprise to you, but anonymous people don’t usually pay for someone else’s child support. That is where an experienced attorney comes into play.
At Marcellino & Tyson, we have a team of dedicated family law attorneys who are equipped with the legal expertise to help you protect what’s yours. If you are filing a lawsuit for child support, make sure you speak with a lawyer about what kind of child support you may be able to attain and the steps to take in order to do so successfully.
The purpose of Marcellino & Tyson’s blog and information postings is to provide news, general information and a general understanding of the law. All content is for informational purposes only and is not legal advice. In addition, reading our informational news does not establish an attorney-client relationship. If you are seeking legal advice, we encourage you to contact an attorney to evaluate your needs.