Last week, the prolific Judge Lawrence R. Jones, J.S.C. shed some much-needed light on an essential question; namely: can the court retroactively set an obligor’s child support obligation to a date earlier than the filing date of an actual motion to establish child support in the reported case of Kakstys v. Stevens? According to Judge Jones, the answer is yes. More specifically, the answer is yes – at least as far back as the filing date of the complaint for divorce, where the complaint asserts a claim for child support.
In his carefully reasoned decision, Judge Jones drew an important distinction between modifications of existing child support orders as compared to the initial establishment of a child support order. At first blush, the experienced attorney might react to the suggestion of applying a child support order retroactively by insisting that the “anti-retroactivity” statute, N.J.S.A. 2A:17-56.23a, prohibits modifications of child support retroactive to a date earlier than the filing date of the motion seeking to modify the support award. And that attorney would be right, if the issue was whether an existing child support obligation should be modified. Judge Jones’s recent decision applies not to modifications of child support, but in the limited context of establishing the initial child support obligation.
Just How Far Back Can Child Support Go?
For Judge Jones, the critical question as to how far we can retroactively establish child support seems to hinge on the concept of fair notice. Specifically, the Court found that a properly filed and served Complaint that asserts a claim for child support is clearly sufficient notice to the obligor; however, the Court declined to make this a hard-and-fast rule:
[T]he Court holds that when a party files a divorce complaint that includes a specific claim for child support, the court may ultimately set a child support order retroactive to the filing date, whether or not the applicant has also filed a follow-up pendente lite motion at some date thereafter and irrespective of the date or disposition or any such interim pendente lite motion. Ultimately, the issue of whether to retroactively set child support to the complaint filing date, or to a motion filing date thereafter, is subject to the discretion of the court, based upon the factual circumstances and comparative equities presented.
As with most things in family law, the discretion of the court and a balancing of the equities are paramount. And this makes sense. If the parties lived together, say, for three months after the complaint was filed and paid for the child’s expenses from their shared resources as they always had done, then why should a formal child support order be in effect for those three months?
But the decision arguably opens the door for setting child support effective to an even earlier date. Here’s a scenario: The parties have been separated for a year before the complaint was filed. The mother is the custodial parent, and six months into their separation (i.e. six months prior to the complaint being filed), her attorney sends a letter to the father’s attorney formally notifying him of a claim for child support. Although not formal notice by way of complaint, this would seem to achieve the goals of adequate and fair notice of a claim for child support that the Court deems critical for establishing an effective date for child support.
Another question that the Court seems to leave open is whether or not child support can, under its holding, be applied retroactively to the filing date of the complaint, or the date of service of the complaint. Although the Court did not reach an answer to this question, it suggested that the date of service would be the date on which the obligor was actually given adequate notice. All the more reason to timely serve a filed complaint upon your adversary.
What about Alimony?
One important question that is raised by the Court’s recent decision is how this may effect alimony. If notice of a claim for child support serves as the fair and equitable effective date for child support, then couldn’t one argue the same for alimony? The Court in Kakstys seems to leave the door open for this argument by noting that “New Jersey law makes clear that when parties divorce, certain financial issues . . . are determined by the filing date of the complaint, not by the filing date of any subsequent interim application.” The Court continues, “If, at a final hearing, these financial claims may be determined and adjudicated retroactive to the filing date of the complaint, logic and reason support the concept that a child support claim, initially set forth in a divorce complaint, may be equitably preserved for trial as well.”
If child support, as a financial issue, can be established as far back as the filing date – or whatever date adequate and fair notice is given – then by this logic, why can’t the same be true for alimony? Only time will tell, but Judge Jones’s decision seems like a good jumping off point to make this argument under the appropriate facts.
Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or firstname.lastname@example.org