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.
Sound complicated? 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.