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New Jersey Child Custody Lawyer- Requesting Retroactive Child Support During a Divorce

Posted by Vincent Deluca | Feb 20, 2020 | 0 Comments

When a divorce complaint is filed in New Jersey, dependent spouses have the right to file for pendente lite relief, which refers to alimony and child support payments made during the divorce proceedings.  These payments ensure that both parties are able to maintain a decent quality of life up until the finalization of the divorce, at which point, a final order for alimony and child support will be issued.  Spouses can also opt out of pendente lite, and wait for the final judgment of divorce.  This may not be a bad idea if you're anticipating a relatively quick divorce, and you still have access to enough of the marital funds for your living expenses. 

Unfortunately, many couples end up in divorces that drag out far longer than they expected.  A divorce that was expected to take 3 months, for example, can end up taking a year or more when spouses disagree on issues such as support amounts and parenting schedules.  Regardless of why a divorce is taking so long, dependent spouses with children often find themselves unable to keep up with the bills.  At this point, the spouse has no choice but to file for pendente lite child support, but should those payments be made retroactive to the filing date of the divorce complaint?  The confusion over this issue stems from New Jersey's anti-retroactivity laws for child support modifications, which state: “No payment or installation of an order for child support... shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification...”

Whether the anti-retroactivity rule should be applied to pendente lite was addressed in the 2015 case of Kakstys-v-Stevens.  The wife in this case did not ask for interim support when she filed for divorce in March 2014.  The divorce was still on-going by January 2015, and the wife finally requested pendente lite child support retroactive to the date of the divorce complaint.  The judge ruled against the rationale of denying her motion based on the anti-retroactivity statute, which he read as referring only to the modification of existing support orders.  There was no existing or pending support order in this case, since the wife had initially opted to wait for the final judgment.  In addition to a lack of statutory basis for denying her motion, the judge found it inequitable to deny her retroactive support for failing to ask for it early on in the divorce.  He supported his ruling based on the fact that numerous financial issues are decided based on the date of the divorce filing, and the fact that in “non-dissolution” cases, child support is automatically retroactive to the filing date of the initial motion.  Hence, it would be inequitable to require interim support filings from divorcing litigants, when they are essentially asking for the same thing as support claimants in non-dissolution cases.  For more information on your support rights and legal options, please speak with the attorneys of Villani & DeLuca, P.C.

About the Author

Vincent Deluca

A founding member of Villani & DeLuca and has devotes the entirety of his practice to family law. Mr. DeLuca Esq. is a trained divorce mediator and collaborative divorce attorney

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Vincent DeLuca, Esq.

As a founding partner at Villani & DeLuca, Vincent DeLuca is one of only a few Certified Matrimonial Law Attorney in Ocean County, New Jersey. Mr. DeLuca has helped many clients navigate the delicate details of their own divorce. Mr. DeLuca is also a trained divorce mediator and collaborative divorce attorney. Call today at (732) 965-3404 to speak to Mr. DeLuca or one of our experienced NJ Divorce Lawyers.

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