Retroactive Child Support

The Superior Court of New Jersey dealt with the issue of retroactive child support in a new way in the recent case of Kakstys v. Stevens. In a typical divorce case involving child support, a party will file a complaint for divorce that includes a request for child support, and while the divorce is pending will file a pendente lite motion seeking child support to be paid in the interim until a permanent child support order is put in place. In the Kakstys case, however, a wife filed for divorce and requested child support, but did not file a pendente lite motion for interim child support for 10 months. When she did file for child support, she requested it to be retroactive to the date that she filed her initial complaint for divorce.

New Jersey has an “anti-retroactivity” statute that only allows a child support modification to be effective back to the date that notice of the motion was filed. In other words, the modification will exist for the time period after the order is in place and for the limited period during which the modification is decided upon.

The question therefore that was to be addressed by the court in Kakstys was whether the anti-retroactivity statute only allowed the child support award retroactive to the date of the filing of the divorce complaint or to the date of the notice of motion for pendente lite support.

The court held that the child support order could be retroactive to the date of the filing a divorce complaint that included a request for child support.

The court in Kakstys found that the “anti-retroactivity” statute only applied to modifications of existing child support orders, whereas the Kakstys case dealt with an initial child support order, not a modification.

The court found that it may allow a child support order retroactive to the divorce filing date if it includes a specific claim for child support. However, the court left open room for judicial discretion in similar cases, based on the factual circumstances of each case.

This is a significant case in New Jersey Family Law because of the amount of child support that may be owed by a parent. If a child support order is retroactive only to the date of filing the motion for pendente lite, the amount of “back” child support payments is fairly limited. With the child support order being retroactive to the date of filing the complaint for divorce, the amount of “back” child support owed will be significantly larger. In the Kakstys case, the wife filed her complaint for divorce in March of 2014, and did not file her pendente lite motion until January of 2015, so the difference in Kakstys is a significant 10 months of child support payments.

If you are in need of legal assistance with a child support matter in New Jersey, call the Law Offices of Peter Van Aulen for a consultation.

N.J.S.A. 2A:17-56.23a

Kakstys v. Stevens (Superior Court of New Jersey Chancery Division, Ocean County, 2015)