Can New Jersey Child Support Be Retroactively Modified In NJ

Under New Jersey law parents have a duty to support their children financially. At the time of divorce, if the couple has children, a judge will most likely grant one spouse child support. The amount of New Jersey child support decided upon at the time of divorce may not be a realistic amount in the future.

Income changes, illnesses, and growing families are just a few examples of circumstances that may make a child support amount unfeasible for a supporting parent. Additionally, changes in the amount of financial support that a child needs may also necessitate a modification of child support. If a married couple divorces when a child is young, the support that child needs may be very different when the child is a teenager.

Typical New Jersey Child Support Modifications

In an ideal world parents would be able to agree upon the amount of support required for their child and be willing and able to pay that amount. In reality, it can be difficult to determine how much support the child needs, and it can also be difficult to determine how much a parent can afford to pay.

Therefore, parents may wish to modify their NJ child support agreements from time to time. In doing so, the parent wishing to modify the child support order must show “changed circumstances” that merit a change. Common examples of situations meriting a modification of child support include a change in the either parent’s income or financial situation, an increase in the cost of living, or an illness or disability. The parent that wishes to modify the order has the burden to prove to the court’s satisfaction that the change in circumstance warrants a modification to the child support payments, and in determining if a modification is appropriate, a judge may order financial disclosures of both parents.  Courts typically do not approve modifications where the change in circumstance is temporary.

Failure to Pay New Jersey Child Support – Arrearages

Failure to pay child support presents serious legal implications that can lead to ruined credit and even jail time. The amount of child support that is past due is called an arrearage. The parent to whom the arrearage is owed may institute a court proceeding to enforce the child support order, and from there a supporting parent may end up owing a significant amount of money to the other parent. As you may imagine, seeking a modification of child support before going into arrearages is highly beneficial to the supporting parent that is having difficulty making child support payments.

Retroactive Modification of NJ Child Support

Once a supporting parent has gone into arrearages, he or she may wish to modify the child support order retroactively, back to the time in which the parent’s change circumstance came about. New Jersey law directly addresses this issue in N.J.S.A. 2A:17-56.23a, which severely limits retroactive modifications of child support. To summarize, the law states that child support modifications can only be retroactive to the date that the parent filed an application seeking a modification of the child support. If written notice is given to the other parent that a parent wishes to modify the child support, and that a motion will be filed within 45 days for that purpose, the modification made may be retroactive back to the date the letter was mailed. As you can see, the retroactive period in either of these cases is very short, and the dollar amount of the modification during this period may be small.

The only exception to the anti-retroactive child support modification law is when a modification is sought back to the date when a child was emancipated. In that case, the modification can be retroactive for longer than the date of written notice given, or the filing of a motion to modify the child support. This is because after a child is emancipated, the parent no longer has a “duty to support” the child, so no child support can be owed.

If you have questions about New Jersey child support, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free consultation.

Source

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

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