RETROACTIVE CHILD SUPPORT: FACT OR FICTION?

retroactive child supportRetroactive child support is a popular topic. Whether dealing with a custodial parent who failed to ask for child support for a period of time or a payor who had a change in circumstances, there are many reasons one may want a retroactive child support adjustment. While most situations involving retroactive child support are black and white, some can be complicated.

We have a statute in New Jersey that addresses retroactive child support. N.J.S.A. 2A:17-56.23a says “[n]o payment or installment of an order for child support, or those portions of an order which are allocated for child support … 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 will 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.”

As such, the law is clear that retroactive child support can only be made back to when the other party is given written notice that a change in circumstances has occurred and a formal request to the court will be filed within forty-five days. If a formal request to modify child support is not made within that forty-five day period, retroactive child support can only be made back to the date you file an application with the court. This is pretty black and white.

However, there are exceptions. The court will allow retroactive child support termination or modification back to the date of a child’s emancipation, even if that date is weeks or months in the past. There has also been recent case law that suggests child support can be modified or initiated retroactive to the date a complaint for divorce is filed, even if a formal request for child support does not follow for months or even years.

The law governing retroactive child support is unforgiving. Courts have long found that the law is clear and only carved out a few exceptions based upon unique circumstances. If you have any questions about how these laws impact you, contact us. We will not tell you what you want to hear. We will tell you what you need to know.

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