Generally, retroactive modification is prohibited.
As with many things in the law, the answer is “maybe.” Generally, the retroactive modification of child support is prohibited under New Jersey law, which provides as follows:
“No payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of [the statute], 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.” N.J.S.A. 2A:17-56.23a.
Nevertheless, there are several exceptions.
First exception: Modification to the date notice is mailed or a motion is filed.
The statute cited above permits retroactive modification back to the date on which a motion for modification was filed with the Court. For example, if you filed a motion on August 1 but the Court did not decide it for several months, any adjustment can be made retroactive to August 1. That period can be extended for up to 45 days prior to the filing of a motion if notice is mailed to the opposing party. The purpose of that 45-day extension is presumably to permit good faith negotiations. Otherwise, litigants would be compelled to immediately commence litigation simply to preserve the date for retroactive modification.
Second exception: Modification of temporary (or “pendente lite”) support orders.
A temporary child support order is subject to retroactive adjustment in the sound discretion of the Court back to the date on which a Complaint for Divorce was filed. During a divorce proceeding, all child support orders prior to the entry of a Final Judgment of Divorce are considered temporary, and because some divorces require several years to complete, the resulting retroactive modifications can be quite substantial.
Third exception: Modifications that increase rather than decrease child support.
The Appellate Division has concluded that the anti-retroactive statute only prevents retroactive decreases to child support. The Court remains free to retroactively increase child support. The purpose of the statute was to remedy the loopholes of interstate child support enforcement laws to benefit children, not to eliminate any perceived unfairness as suggested by the person paying support. For example, the Appellate Division allowed a retroactive increase where a father had failed to disclose a significant increase to his income for several years. Essentially, the Appellate Division decided that the father should not be rewarded for his bad faith failure to disclose relevant information.
Fourth exception: Termination of support obligations.
While the Court is generally prohibiting from retroactively reducing child support, it can retroactively terminate child support. Situations warranting retroactive termination include the child’s emancipation or death. The anti-retroactivity statute was enacted to ensure that ongoing support obligations are paid. Therefore, a simple change of circumstances like job loss cannot be used as a basis for retroactive modification. Even so, the judicial obligation to enforce a child support order arises only if a duty to provide support exists. If there is no longer a duty of support by virtue of emancipation or death, no child support can become due. This exception, however, applies only where the event warrants automatic and complete termination of child support. Thus, something like a transfer of custody, where the obligation of support survives but is swapped between parents, does not fit this exception.
Conclusion
If you are considering or going through a divorce, I strongly recommend retaining a strategic and aggressive attorney to represent you. As the managing attorney of Shaw Divorce & Family Law LLC, I would be happy to sit down with you free of charge to explore the facts, explain the law, and address the likely timeline, costs, and range of possible outcomes. To schedule a free consultation, CLICK HERE.
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