Is child support at stake in your divorce? Here’s some important news you need to know. In a recent New Jersey Superior Court decision, Judge Lawrence R. Jones handed down a precedent-setting decision that establishes the retroactive date an initial child support obligation can be collected on as the date the parents filed for divorce, not the filing date of a separate motion for child support, as has been previously followed. In many divorces, the difference between these two dates can be months or even years, meaning that some parents could be due to collect — or pay — hundreds or even thousands more in support than previously thought.
The case that brought about this ruling, Kakstys v. Stevens, involved a couple married for sixteen years with two children, twins, who are now ten years old. In November 2013, the parties permanently separated, with the defendant (father) moving out of the marital home and the children remaining in plaintiff’s (mother’s) primary care. Upon separating, no support was paid. In April of 2014, the plaintiff filed for divorce.
Over the next several months, contested issues put the divorce case on course for pretrial motions. Finally, in January 2015, the plaintiff filed a pendente lite motion for temporary child support until a final order was in put in place at the conclusion of the divorce. In an interesting move, the plaintiff’s motion sought child support retroactive to, at the very least, the filing date of the divorce complaint, or March 2014.
In making his decision to allow for establishing support retroactive to the divorce filing date, Judge Judge had to answer the question whether the court may retroactively set an obligor’s child support obligation (a) only as of the filing date of an actual child support motion (pendente lite or otherwise), or (b) prior to the motion filing date, back to the filing date of the divorce complaint itself. The distinction can in many cases be very substantial, especially when there is a large time gap in between filing for divorce and filing for support.
In his findings for establishing support retroactive to the divorce filing date, Jones stated:
For the reasons set forth in this opinion, the court holds that when a party files a divorce complaint that contains an explicit, written request for child support from the other party, the court may at trial establish the other party’s child support obligation retroactive to the filing date of the divorce complaint, less an equitable credit for any support actually paid following the effective date, even if a motion for child support was either never filed, or not filed until sometime after the filing of the complaint. Further, a retroactive order of this nature does not violate either the terms or spirit of New Jersey’s anti-retroactivity statute, N.J.S.A. 2A:17-56.23a.
What does this mean for you? If you have filed for divorce, but not yet put in a motion for pendente lite (temporary child support), it may be appropriate to request support paid retroactive to your divorce filing date, citing this case as the precedent.
Wondering when to file for child support? Have questions related to divorce or other divorce-related parenting issues? Our experienced attorneys are here to help. Please contact us today to schedule your initial consultation.