Retroactive child support is a complicated but popular subject of speculation for many of our clients. If a child support recipient fails to ask for child support for a period of time, or if a child support payor has a change in circumstances and can no longer afford to pay, can there be a retroactive readjustment to the child support obligation? Read on to learn about retroactive child support adjustments in Jersey. Speak with a knowledgeable Englewood child support attorney for help with a New Jersey family law matter.
No Retroactive Child Support Modification Beyond the Origin Date of a Pending Motion
A provision of New Jersey law specifically addresses the question of retroactive child support modification. Under N.J.S.A. 2A:17-56.23a, no child support order can be applied retroactively, except to the extent that a motion for child support or modification has been pending. In other words, New Jersey law prohibits retroactive child support orders, except that a court can order child support retroactive to the date a party filed the application for child support currently at issue. Retroactivity for the pending motion can go back to the date the notice of motion was mailed.
To clarify, when a party experiences a change in circumstances and wants to get their child support obligation modified, they must send a notice to the other party. That notice must explain that a change in circumstances has occurred and must state that they will file a formal request for modification with the court within 45 days. If the party proceeds to file a motion for modification within 45 days and the modification is eventually granted, then the modification can be applied retroactively to the date the notice was mailed. If the party waits longer than 45 days to file for modification, then the modification can only be made retroactive to the date the application was actually filed with the court. The parties can, of course, resolve the matter outside of court after notice has been given and without filing a motion with the court.
Under certain circumstances, a court will apply for an order retroactively. If a child has been emancipated, then the court will allow retroactive modification to the date of the child’s emancipation, even if the emancipation occurred weeks or months in the past. The reason is that the “duty to support” should have stopped upon the child’s emancipation. A New Jersey court has also permitted a retroactive increase to a child support obligation where the obligor was found to have withheld information about his higher income.
Call for Help With a New Jersey Child Support Matter
If you’re considering divorce in New Jersey or dealing with child support, child custody, property division, or other family law issues, contact the Englewood family law attorneys Herbert & Weiss at (201) 500-2151.