In a recent decision coming out of Ocean County, http://www.judiciary.state.nj.us/trial_court_opinions/Kakstys-v-Stevens.pdf, Judge Lawrence Jones opined that the request for child support can be retroactive to the filing of the divorce complaint. The question posed in the Ocean County divorce case was whether the court could set a child support obligation only as far back as the filing of the motion (which is usually the case pursuant to court rule) or as far back as the filing date of the action for divorce.
The court’s decision to permit the parties to calculate child support from the date of the filing of the complaint is significant for many families because often times the divorce process takes over a year. New Jersey has a statute that prevents those seeking child support to get child support beyond the period they officially asked for the child support in their motion. N.J.S.A. 2A:17-56.23(a) states that
[n]o payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date [of the statute], shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice shall state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45 day period, modification shall be permitted only from the date the motion is filed with the court.
After lengthy discussion, Judge Jones holds that when a party files a divorce complaint which contains an explicit written request for child support from the other party, the court may retroactively establish the other parent’s child support obligation back to the filing date of the complaint for divorce. He did not say shall or will, but left it to the discretion of the Judge deciding the case. One key factor is the fact that the complaint for divorce clearly states that the party is seeking child support, in plain and simple language, so the other party would know or reasonably should have known that child support was an issue and being sought.
If you have any questions about your child support obligation, contact one of our attorneys.