Oftentimes, people seeking to modify downward their child support payment obligation will seek to do so as of the date that they allege the change in financial circumstances commenced, i.e., a loss of employment, suffering a disability, and the like. To protect the existing "duty of support," however, New Jersey has a statute that expressly addresses the retroactive modification of child support payments.
N.J.S.A. 2A:17-56.23a clearly states:
[n]o 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 [N.J.S.A. 2A:17-56.23a], 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.
The law is, therefore, clear – retroactive implementation of a child support modification may only be made back to when the other party is put on written notice that a change of circumstances has occurred and a motion to address the issue will be filed within 45 days of such notice. Where the motion is not timely filed within that 45-day period, the retroactive implementation may only be made back to the date when the motion is actually filed.
The only situation that deviates from the statute is where modification is sought retroactive to the date of the child’s emancipation, which is permitted even if it occurred long before notice was provided or a motion filed. The rationale is that there no longer exists a "duty to support" where a child is deemed emancipated and, as a result, there can be no child support actually due for the time period after such emancipation is held to have occurred.
While this statute is seemingly unknown by many, it can prove to be a useful tool to aid your client. On several occasions, we have sent a letter to an adverse lawyer or party notifying them of the change in circumstances and our intent to file a motion pursuant to the statute. Should the Court grant your client’s motion, the benefit of additional days of retroactive modification are potentially included under the law. Of course, this is not as beneficial to the payor spouse who seeks to modify retroactively to the when he or she perhaps first experienced what they deem to be a change in circumstances, which may have been long before notice was actually sent under the statute, but it attempts to provide some balance between the core parental "duty of support" and the payor’s changed financial circumstances.
The law could also work to facilitate a settlement of the issue between parties, effectively providing a 45-day window from the date of the written notice to resolve the issue without litigating the issue in Court. Potentially substantial legal fees and costs are saved by both parties as a result. Whether the issue could settle is, of course, dependent upon a given set of circumstances and parties.
It was this issue and law that was addressed by the Appellate Division in the unreported (not precedential) decision of Bessinger v. Klich. There, the Appellate Division found that the trial court erred by retroactively modifying the payor spouse’s child support obligation to June 2005, the month in which he was declared disabled by the Social Security Administration, rather than as of the date of the payor’s motion to modify his support obligation in October 2008. While the Appellate Division noted the trial court’s consideration of equity in favor of the payor and his financial struggles, it noted that, neither the disability at issue, or equity overrode the clear and unambiguous language of the law quoted above.