N.J.S.A 2A:17-56.23a is a New Jersey statute which is commonly known as the “anti-retroactivity” child support statute.
By its express language, that statute only bars a New Jersey family court from modifying child support, retroactive to a date prior to the filing of a Motion with the court. However, the statute has been used by spouses who do not yet have a court-ordered child support obligation in a New Jersey divorce case, to attempt to avoid the responsibility to pay that child support prior to the date when the custodial parent files a Motion.
A recent published decision by New Jersey Family Court Trial Judge Lawrence R. Jones makes it clear that the “anti-retroactivity” child support statute cannot be used to support that result.
In Kakstys v. Stevens, the parties had two (2) minor children and permanently separated on November 15, 2013, when the father moved out of the marital home and left the children remaining in the mother’s primary care.
After he moved out, the father did not pay child support to the mother.
On or about March 28, 2014, the mother filed a divorce complaint which included a written request for child support.
However, the mother did not file a Motion for child support until on or about January 6, 2015. Her Motion asked the court to order the father to pay child support retroactive to, at the very least, the filing date of the divorce complaint.
The issue before Judge Jones was whether New Jersey law permits the award of retroactive child support: (1) only back to the motion filing date of January 6, 2015; or (2) back to the complaint filing date of March 28, 2014.
Judge Jones concluded that the earlier date was proper.
After explaining why the express language of the “anti-retroactivity” child support statute does not require its application to initial child support determinations, Judge Jones gave several other reasons for his conclusion:
- New Jersey family law makes it clear that when parties divorce, certain other financial issues are determined by the filing date of the complaint.
- When a divorce complaint states that child support is being sought, the other party knows that child support is an issue.
- In “non-divorce” New Jersey child support cases, Family Court judges frequently enter child support awards retroactive to the complaint filing date.
- New Jersey Family Court Interim support orders are always subject to further review and possible retroactive increase, decrease, or other modification at trial.
- Between the time of the filing of the divorce complaint and trial, there are many legitimate reasons why a custodial parent might choose not to file a motion for child support, such as a desire to avoid spending the expense, time, and energies that are generally involved in the preparation and filing of such a motion, or to avoid any unnecessary escalation of litigation which a motion may cause.
Judge Jones acknowledged that, of course, there are cases when awarding child support retroactive to the filing date of the divorce complaint might not be appropriate. Those cases would include where during the period between the complaint filing date and the motion filing date, there were substantial financial payments by the obligor, or the parties were living together and sharing expenses.
Choosing the right law firm in a New Jersey divorce case makes all the difference.
Salvaggio Law Group LLC handles only a limited number of cases at one time. Because of this, we can give you the attention you deserve. If you want to talk, please call us at (973) 455-1220 or fill out the Contact Form on our website.