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NJ Child Support: Retroactive Modification of Child Support Based on Emancipation

In March of 2016 the New Jersey case of Harrington v. Harrington was decided. The case deals with the retroactive modification of child support when a child is emancipated. In Harrington, the plaintiff and defendant had three unemancipated daughters, a twenty-year-old college student, a seventeen-year-old high school student planning to attend college, and a fifteen-year-old high school student, when they divorced in 2012.

The plaintiff agreed to pay $240 per week in unallocated child support. Unallocated child support is support that is not allocated as specific amounts of money per child, but rather one amount for all the children. In this case, that means that the $240 per week payment is not divided into ⅓ (or $80) per child.

In September 2014 the parties mutually agreed to emancipate the two eldest daughters, which typically means that the payment of child support would be recalculated. However, neither party sought to change the child support order, and the plaintiff continued to pay $240 per week in child support.

In February 2016 the plaintiff filed a motion with the court to change his child support obligations. First, he sought to retroactively allocate the previously unallocated child support from $240 per week to $80 per child per week back to September 2014 when the two eldest daughters were emancipated. Then, he sought to retroactively reduce the child support by two-thirds, or $80 per child for a total reduction of $160. Finally, he sought to emancipate the youngest daughter retroactive to July 2015 and terminate the payment of the remaining $80 per week in child support.

Retroactive Child Support In New Jersey – Conflict Between Statute and Case Law?

The judge in this case pointed out that there is an apparent conflict of law. New Jersey has an anti-retroactivity statute that generally prohibits retroactive modification of a child support order to a time before the filing date of a motion for such relief, or forty-five days earlier if given written notice. However, there is also case law that says that the statute does not prevent a retroactive termination of child support when a child is retroactively emancipated. The question in Harrington becomes which law applies?

The judge said that the case law is not exactly on point when it comes to the unique and complicated set of facts of this case. The judge went on to say that the unique set of facts are the most important factor to consider when deciding the outcome of a case. In doing so, the judge ordered a trial where the trial judge would consider 10 equitable factors to determine the outcome of this case.

The Harrington Factors

Those factors include:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support

based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the noncustodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?


Laches is an equitable legal doctrine that applies when one party knowingly does not act on a legal right for a period of time such that it would be unfair to enforce that legal right later. Here, the period of time during which the plaintiff had a legal right to a modification of child support but did not choose to pursue it is lengthy, and therefore requiring the defendant to repay child support may be unfair. The court left the decision of whether laches applied up to the trial court.

The Holding of Harrington v. Harrington

The court’s ultimate decision in Harrington is two fold. First, when the parties have multiple children covered in an unallocated child support order, and a child becomes emancipated, the emancipation is a change of circumstance allowing either party to seek review and modification of the existing unallocated child support order. Second, if a parent seeks a retroactive modification of unallocated child support for multiple children based on a child’s emancipation while there are other unemancipated children, the court has discretion to choose whether to modify or not modify child support back to the date of the child’s emancipation, using the equitable factors that are discussed above.

If you are in need of legal assistance with a child support matter, please call the Law Offices of Peter Van Aulen for a free initial consultation.


Harrington v. Harrington, Civil Action Docket No. FM-15-343-12

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


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