This is a common question asked by our clients. Whether you are in the
middle of a divorce or looking to modify your child support obligation,
the date the child support is effective is very important. Generally speaking,
the child support effective date is governed by statute.
Until recently, child support could only be effective on two dates. First,
it could be effective the date an initial or modification application
(also called a motion) for child support is filed with the court. Second,
it could be effective the date a notice is sent to the other party indicating
that child support should be modified and then an application is actually
filed within 45 days. The problem is that retroactive child support is
generally prohibited by federal and state law, so filing for child support
or a modification of child support as soon as possible is essential.
On October 15, 2015, a trial court in Ocean County decided that there can
be other dates that child support can be effective. In situations where
a divorce is pending and the complaint for divorce specifically asks for
child support, the court ruled that child support can be effective as
of the filing date of the complaint without running afoul of the statute
barring retroactive child support. The trial court indicated that “the
issue of whether to retroactively set child support to the complaint filing
date. . .is subject to the discretion of the court, based upon the factual
circumstances and comparative equities presented.”
Kakstys v. Stevens (FM 15-1199-14).
What does it all mean? If you are going through a divorce, child support
can be set as of the date of the complaint, even if you do not request
it for many months into the case, but it is not a guarantee. If you already
have a child support order and need to have it modified, you are still
left with the statute that only allows modification to the date you file
a motion or send a letter advising of the change in circumstances coupled
with a motion filed within 45 days.
Contact us to find out how these new developments may affect your case. We are not
going to tell you what you want to hear; we are going to tell you what
you need to know.