Del. Fam. Ct. Civ. R. 509

(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 and shall not predate the

resolution of a previous new support action wherein current support was declined by the

same petitioner, or not awarded due to the same petitioner’s failure to appear.

(b) Retroactive support 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:

(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. However,

when imposing a payment term in a case where all arrears have been assigned to the State

of Delaware, and the individual has other child support accounts owed to private

individuals or other States, then the repayment element of the obligation owed to the

State of Delaware should be $20 per month.

(4) In addition to any other repayment term, genetic test costs should be paid at the rate of

$20 per month.

In all other instances repayment shall approximate the amount that would have been due if

current support had been ongoing. If a calculation is performed, it should be based upon the

obligated parent’s income alone with a 50% primary share and increased by 20% to simulate an

arrears payment. Deviation may occur by agreement, upon subsequent or repeated contempt for

non-payment, or for good cause shown.