Retroactivity is a hot topic at the Friend of the Court when it comes to paying support. Merriam-Webster defines the word retroactive as “extending in scope or effect to a prior time or to conditions that existed or originated in the past, especially: made effective as of a date prior to enactment, promulgation, or imposition.” When it comes to the payment of support, retroactivity is legally limited. However, it can be done in cases where “there is pending a petition for modification, but only from the date that notice of the petition was given to the payer or recipient of support.”
For example, if mom files a petition to increase child support based on dad’s new job, support can be retroactive to the date that dad was given notice of mom’s petition to change support. Generally, this is the date that mom or the Friend of the Court mailed the notice of review or petition to dad.
Based on realistic time frames for completion of the child support review, mailing it out to the parties, and waiting for the objection period to pass, months can go by before any objections are noticed up for hearing in front of a referee or judge.
Once the Friend of the Court is notified of the objection, another hearing is scheduled, generally with the referee, and this process can be delayed by scheduling conflicts. There can unfortunately be months’ worth of retroactive application of support by time the matter is all said and done, since parties can object to what the referee recommends as well. This creates a snowball effect, as arrearages pile up if the new amount is more than the previously paid monthly support.
When a payer has arrears of a certain amount on his or her account, enforcement measures can be taken, such as suspension of passports or licenses, and credit reporting. Extra monies are withheld from the payer along with regular support to “catch up” the account, but in reality, it can take years to bring the account current.
On the flip side, if the new retroactive support amount reduces the monthly payment, a payer could end up with a credit. In those cases, support is billed against the credit until it is exhausted. Clearly payers view retroactivity in a positive light in this scenario.
Regardless of the outcome, retroactivity emphasizes the importance of filing for a child support review as soon as you learn of your new circumstances. While everyone is afforded a review every 36 months, either party can petition for one sooner if there has been a change in circumstances, like job gain or loss, increased or new daycare or health care costs, etc. Since the reality is that months will go by before a resolution, preserving the retroactive date is extremely important.
