There are many rules in our court system pertaining to the filing of pleadings. In order to start a divorce case in court, a Complaint for Divorce must be filed. The date the complaint is marked “filed” is generally the date we use for valuing assets and debts subject to equitable distribution. In order to obtain court-ordered relief during the pendency of a divorce case with regard to temporary child support, alimony, or other issues, a motion must be filed requesting such relief. Generally, relief is granted as of the date that the motion was filed.
In some cases we choose not to file a complaint right away, with the hope of settling the case prior to getting involved in litigation in the court system. In other cases, we may file a Complaint for Divorce in order to establish the cut-off date for equitable distribution, but our goal may be to stay out of court and try to settle the case without court intervention.
Regardless, child support begins either when the parties reach an agreement on this issue, or when a court enters an order. Many times, we can reach an agreement on temporary support (child support and alimony) while we exchange documents with a view toward overall settlement. Sometimes we can’t reach agreement, and there will be a need to file a motion with the court requesting temporary relief. This type of motion is called a Pendente Lite motion.
There is a New Jersey statute that prohibits retroactive modification of a child support order—meaning that when requesting modification of an order, the relief can only go back to the date the motion was filed. An initial child support award is not a request for modification, and, therefore, the statute that prohibits retroactive modification of child support doesn’t apply.
So, what happens if you don’t file a motion with the court right away requesting child support? In the case of Kakstys v. Stevens, the lower court held that a trial court may establish a child support obligation retroactive to the filing date of the divorce complaint. This makes perfect sense if the parties have been trying to work out their issues and no one files a motion for child support until many months after a Complaint has been filed because they hope to reach an agreement.
Since a divorce complaint requests child support in the prayers for relief, the other party has been put on notice that child support is an issue in the case. The Kakstys court noted that requiring a litigant to file a motion to preserve his or her right to child support is not in compliance with our public policy, which encourages settlement as opposed to litigation.
This case makes it clear that child support can be obtained retroactively to the date of the complaint. Unanswered is whether a court can award child support earlier than that date.