In New Jersey, If I Have Overpaid Child Support, May I Receive A Retroactive Credit?
One basis for reduction in New Jersey child support is the occurrence of a change in financial circumstances of either party. Accordingly, clients who seek a reduction of their child support obligation will reasonably ask whether that the reduction can date back to the date in which the changed circumstance commenced. For example, the applicant losing his/her job, the payee spouse’s significant increase in income, disability, and many other reasons.
While it seems to be somewhat unknown to many, New Jersey has a statute which specifically addresses the retroactive modification of child support payments. N.J.S.A. 2A:17-56.23a is very clear 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. In other words, child support can only be retroactive to the date in which an application was filed with the Court seeking a modification.
As a New Jersey child support lawyers, we understand the principal behind the statute’s limitation on retroactive application of a modification of child support is seemingly balancing the supporting party’s “duty to support” until such time as the modification is ordered, with the payee party’s expectation and reliance upon the support.
However, the statute also provides an additional avenue for relief, which seems to be uncommonly utilized and that is that in the event a litigant provides written notice to the other party that a change of circumstance has occurred, and that a motion for modification of a prior order will be filed within 45 days, the support can be retroactive to the date in which that written notice was mailed. However, if a motion is not filed within that 45 day period, modification shall be permitted only from the date the motion is filed with the court.
Accordingly, after concluding that my client has a legitimate basis to seek a modification, I will occasionally send a letter to the opposing party notifying him or her of the alleged changed circumstances and of my client’s intention to file an application with regard to same. If my client’s application is successful, this could potentially afford up to an additional 45 days of relief.
Furthermore, very often within said 45 day period after writing a letter with notice of my client’s intentions 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. While it is less common that this type of resolution is the outcome, it is certainly a prudent first-step in certain circumstances prior to filing an application with the Court.
Generally, the only time there is deviation from this statute is when a party seeks a modification retroactive to the date of a child’s emancipation. The rationale is that the “duty to support” no longer exists when a child has been deemed emancipated. Therefore, no child support was actually due to the child after the emancipating event occurred.
If you or a loved one has any questions regarding your child support obligations, please never hesitate to contact my New Jersey divorceand family law firm for experienced advice.
A special thanks to Molly Turpin, Esq, a rising star at Law Offices of Edward R. Weinstein and throughout the state of New Jersey.