Child support is of paramount important in New Jersey. As a tested child support attorney I have advised many clients that a court may retroactively set a child support award to be effective form the date the complaint for divorce was filed. The recent case of Kakstys v. Stevens, presented an important legal issue regarding when the effective date for a retroactive award of an initial child support obligation should be. This is of vital importance in divorce and non-dissolution matters (cases in which the parents were never married) as well as restraining order matters. The specific question presented for lawyers and judges to use as guidance was whether the court can retroactively set a supporting parent’s child support obligation either only as of the filing date of an actual child support motion, or prior to the motion filing date to the date of the divorce complaint itself. Many times there is a large time gap between the filling date of the divorce complaint and the filing date of a subsequent pendent lite motion for child support, so the difference can be quite substantial in many cases.
In Kakstys, the court held that when a party files a divorce complaint that contains an explicit, written request for child support from the other spouse, at trial the court may establish the other spouse’s child support obligation, retroactive to the filing date of the divorce complaint. This award of course would be less an equitable credit for any support actually paid following the effective date. It does not matter if a motion for child support was either not filed, or not filed until sometime after the filing of the complaint. Finally, the court stated that such a retroactive nature would not violate the terms or spirit of New Jersey’s anti-retroactivity statute, N.J.S.A 2A:17-56.23a.
Susan Kakstys and Douglass Stevens were married for sixteen years. During the course of the marriage they had two children together, twins, H.S. and J.S. who were ten at the time of the current case. The couple permanently separated on November 15, 2013. Douglass moved out of the marital home, and the children remained in Susan’s primary care. After the separation, Douglass did not pay any child support, and Susan did not immediately file a motion asking the court for a formal support order. On or about March 28, 2014, Susan filed a complaint for divorce. She sought various forms of relief against Douglass. The divorce complaint expressly included a written request for child support from Douglass. Eventually Susan successfully served the summons and filed complaint upon Douglass, who in turn hired an attorney and filed an answer and counterclaim for divorce on or about August 14, 2014.
For almost six months between August 2014 and January 2015, the case proceeded through pre-trial litigation as a contested case. However, during this time neither party filed a motion with the court for an order of pendent lite child support. Pendente lite means "awaiting the litigation" or "pending the litigation". In divorce a pendente lite order is often used to provide for the support of the lower income spouse while the legal process moves ahead. The parties ultimately settled some of their parenting issues through negotiation and mediation. However, efforts to resolve the rest of the case failed, and numerous issues, including the issue of child support, remained unresolved.
Finally on January 6, 2015, Susan filed a pendente lite motion that sought retroactive child support to, at the very least, the filing date of the divorce complaint. On February 17, 2015 Douglass filed a response and cross-motion for various forms of financial relief, including but not limited to alimony. The first issue in regards to Susan’s request for child support was whether she may obtain retroactive child support only back to the motion filing date of the January 6, 2015, or instead, back to the complaint filing date of March 28, 2014. The court held that retroactive child support goes back to the date the complaint was filed.
The court noted that New Jersey has an anti-retroactivity statute relative to child support, N.J.S.A 2A:17-56.23a. According to this statute, a court can retroactively modify one’s child support obligation under an existing court order back to the filing date of an application for modification, or forty-five days earlier upon service of advance written notice. The purpose behind this law is to ensure that the parent paying child support has fair and reasonable advance notice of any proposed modification of a support order, so that he or she may adequately prepare, plan, and respond accordingly.
In matrimonial matters, some attorneys automatically assume that the law prohibits the retroactive establishment of child support to any date before the filing date of a pendent lite support motion, or forty days earlier at most upon written notice. The court noted that a closer reading of the statute reveals that the language references modifications to support orders, meaning existing orders that were already established and entered by the court. The law, which deals with changes or circumstances from the time of a previous order, does not address the completely separate issue of an effective retroactive date of an initial support order, following the filing of a divorce complaint in which the filing spouse requests child support.
Furthermore, nowhere in the law’s language does it state that a spouse who files a divorce complaint must also file a pendente lite support motion before trial to avoid legally forfeiting any and all child support entitlements between the filing of the complaint and the date of the judgment of divorce. The court noted that family court is a court of equity, which means that it is a court of fairness. Forfeiture of child’s right to be supported by both parents is entirely against the basic concepts of fairness and equity. Equity abhors forfeiture. Moreover, if the New Jersey Legislature intended the requirement of forfeiture, the drafters of the law could have easily included language that directed the same.
New Jersey law makes clear that when people divorce, certain financial issues, such as eligibility of assets and debts for equitable distribution, are determined by the filing date of the complaint, not by the filing date of any subsequent motion or application. If these financial claims may be determined retroactive to the filing date of the complaint at trial, then logically, a child support claim, initially set forth in a divorce complaint, can be equitably preserved for trial as well. This is a material point because of the incredible importance of child support, which is a right of a minor child that generally cannot be waived. Furthermore, Susan properly served her divorce complaint upon Douglass, giving him sufficient written notice in clear and simple language, that she was seeking child support. Also, even if Susan had filed a pendent lite child support motion before January 2015, any and all relief granted on such a claim would not have been final at all, but would have only been a temporary arrangement, and subject to further review and possible retroactive increase, decrease, or other modification. A pendent lite support order is subject to retroactive adjustment, notwithstanding the anti-retroactivity statute.
There are many reasonable and legitimate reasons why a parent might choose to refrain from filing a pendente lite motion for child support such as, a desire to avoid spending money, time and energy in the preparation of the same, a wish to avoid any unnecessary escalation of litigation which the motion may cause, and a desire to attempt to settle the case through less hostile avenues such as negotiation or mediation. For all the aforementioned reasons the court held that when a spouse files a divorce compliant that includes a specific claim for child support, the court can set a child support order retroactive to the filing date, regardless of whether or not the spouse also filed a pendent lite motion. Ultimately, the issue is subject to the discretion of the court, based on the case specific factual circumstances and equities presented. The court held that Susan’s claim for retroactive child support was not forfeited, but actually preserved for trial. Also, if Douglass alleges that during the same time period he made other financial payments and should receive an equitable credit such retroactive support, he can submit his evidence through discovery and trial as well.
My office can handle any child support matter and we invite your inquiry.