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Big Change in Divorce Law - A Warning for Spouses Paying Support

divorce.gifFor parties involved in a divorce with child support at issue, the process has just become simpler. A Family Court Judge in Ocean County recently ruled on how the "effective date for the retroactive establishment of an initial child support obligation" should be decided.

The case, called Kakstys v. Stevens, is about the time of the filing of a complaint for divorce, which included a written request for child support. The wife and husband were married for 16 years and had two children, ten-year-old twins. After they separated in November of 2013, both children continued to be in the wife's primary care, in the family home. The divorce complaint was filed in March 2014. The case continued for 6 months, with neither party filing an application with the court to establish the amount of child support. Only in January 2015 did the wife eventually file that application. In it, she requested child support retroactive at least to the filing of the complaint 10 months before. Was she entitled to retroactive relief back going back that far?

The Judge noted that all financial determinations are made as of the date of the filing of the complaint and that logic says that a child support claim should be preserved until trial, for the best interests of the child. Also, the Court said that filing and serving of the divorce complaint was adequate and advance "notice" to the husband that his wife was seeking child support - she did not need to file a pre-trial application to preserve the child support claims.

The Judge emphasized New Jersey's "strong public policy encouraging family court litigants to consider resolving their cases through alternative means besides contentious and expensive proceedings." Since all divorce papers in New Jersey have attached an affidavit confirming the availability of alternative dispute resolution options, the court said that negotiations outside of court were preferable to a long court battle. Finally, the decision said that the husband could have filed a pre-trial application if he chose, to set the amount of child support at an earlier stage; the wife should not have had to suffer a financial loss because of that.

The Kakstys decision will allow custodial parents to recover part of whatevedr they spent on the other spouse's behalf to support their children during the divorce litigation. That puts the burden on the non-custodial parent to either pay an adequate amount of child support from the beginning of the case, whether or not negotiated with his or her spouse, or file an application for the Court to set the amount. The alternative, as it was for the husband in this case, is being "hit" with a substantial amount later in the case. That may be a "fair" outcome for a parent who won't contribute to his or her children's welfare - it should encourage both sides to resolve their differences - at least the financial ones - early in the case, saving considerable legal fees in the process. With the collaboration of Lauren Bland, Rutgers School of Law Newark candidate for a JD degree in May 2017. She is Staff Editor of the Rutgers Law Review.

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