Can I get a Retroactive Credit for Overpaid Child Support in New Jersey?
Family Law Attorney navigating the Child Support Process for clients in Linden, Cranford, Elizabeth, and across Union County
Due to changing life situations, New Jersey family law courts are often full of individuals petitioning for modifications to child support obligations. If a modification or elimination of child support is granted it is reasonably asked whether that that modification or elimination can date back to the date in which the changed circumstance commenced.
New Jersey statute N.J.S.A. 2A:17-56.23a specifically addresses the retroactive modification of child support payments. It clearly states that no child support order shall be applied retroactively except with respect to the period during which there is a pending application for a modification. Put simply, child support can only be retroactive to the date in which an application was filed with the Court seeking a modification.
Balance Supporting Party’s Duty to Support with Payee’s Reliance on Support
It is important to understand that the principle behind the statute’s limitation on retroactive application of a modification of child support is to balance the supporting party’s “duty to support” until a modification is ordered, with the payee party’s expectation and reliance upon the support. In other words, if the receiver of child support suddenly has to pay back a sum of money, it can cause great financial harm to the receiver and thus have an adverse effect on the children.
Retroactive Modification Possible Back to the Date Written Notice Was Mailed
However, with the understanding that changes in circumstance may happen suddenly and without notice, the statute provides an additional avenue for relief. In the event a litigant provides written notice to the other party notifying them of a change of circumstance, and that a motion for modification will be filed within 45 days, the support can be retroactive to the date that written notice was mailed. As a result, you can begin to receive credit for that change of circumstances almost immediately and not wait until the court begins the review of your petition. However, it is critical to note that if a motion is not filed within that 45 day period, a modification shall be permitted only from the date the motion is filed with the court.
Attorneys May Be able to Reach Resolution Outside of Court
It is best to use your attorney during this written notification process for many reasons. Often within the 45 day period after written notification of a client’s intention to seek a modification, the parties will make efforts to reach a resolution of their issue and ultimately enter into a consent order in lieu of having to file an application with the court. It is certainly a prudent first-step in certain circumstances before filing an application with the court. Having an experienced attorney to represent your interest can make all the difference in this process.
The exception to the no retroactive modification of child support rule
Usually, the only time the court will deviate from the rule that does not allow retroactive modifications of child support is when a party seeks a modification retroactive to the date of a child’s emancipation. The reasoning is that the “duty to support” should no longer exist once a child has been deemed emancipated. Therefore, no child support was actually owed or due to the child after the emancipating event has occurred.
Emancipation Considered by the Court for Retroactive Modifications
The term “emancipation” refers to a court process by which a minor becomes self-supporting and no longer requires the financial support of their parents. Any minor can become “emancipated” before the age of majority if he or she gets married, joins the military, leaves home or becomes economically independent. Under these circumstances, a parent no longer has the obligation to provide child support.
It is not uncommon for a paying parent not to know that the circumstances for emancipation have been met. If they continue to pay past the point of emancipation the court may take this into account and credit payments made after the date of emancipation.
Contact an Experienced Linden NJ Family and Child Support Lawyer Today
If you are owed retroactive child support or have been ordered to pay retroactive child support, or you have other child support related issues, it is important to speak to an experienced child support attorney like Edward Cooper regarding your issues. Child support is a legal, binding obligation with both parents expected to do their part in supporting their children.