My husband was divorced 3 years ago in NJ. Him and his ex-wife signed divorce agreement. At that time his son was 21 yo and was attending full-time college. Now his son is attending a medical school. Per the agreement they were to have a join custody and no child support for his son was mentioned in this agreement. All the sudden, 3 years later his ex-wife wrote him an e-mail declaring that she will go back to court, modify their divorce agreement and demand my husband to pay retro child support for their son for these past 3 years. I know that under the state of NJ its not clear when the child is immancipated but is she really entitled to do that 3 years after the divorce was finalized? She actually has way higher income than my husband. Please advise.
Divorce / Separation Lawyer
The terms of the Property Settlement Agreement will control. To answer your question, generally Child Support would only be retroactive from the date the motion/application for modification was filed with the Court. It would be highly unusual for the Court to let her collect support for the three years you speak of. However, if he was required to pay college expenses or other amounts then she may have a claim to enforce her rights under the Agreement for sums he did not pay. From your question it seems like there is more to the story. If she does file any motion with the court I would suggest that you consult with an attorney and bring with you the Property Settlement Agreement.
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I agree with Mr. D'Alessandro that the terms of the property settlement agreement will govern. In reference to child support, she can't file a motion and ask for three years worth of payments. She would potentially be eligible to receive child support retroactive to the date she filed her application with the court.
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There needs to be changed circumstances before relief can be granted.
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A good lawyer will require a lot more information, in order to properly advise your husband. Among other things: (1) Was your husband and/or his ex-wife represented by a lawyer in the divorce?
(2) Why was there no mention whatoever of child support in the Settlement Agreement? Was it because your husband was paying for a part of college, and his ex-wife accepted that as sufficient?
There is a statute in New Jersey (N.J.S.A. 2A:17-56.23a) which is referred to as the "anti-retroactivity" statute with respect to child support applications. That statute prohibits child support from being REDUCED retroactively, except in very rare cases which are not relevant here.
A common misconception (even among some lawyers) is that this statute also prohibits retroactive INCREASES. It does NOT do so.
All that being said, because your husband's ex-wife did not take any action for 3 years--it will be very difficult for her to justify to the Court any request for retroactive child support, without very compelling justification.
At this point, nothing has been filed by the ex-wife with the Court. If she does, I strongly recommend that your husband schedule a meeting with a very experienced lawyer who devotes his/her practice to New Jersey Divorce and Family Law matters. That lawyer should take whatever time is necessary to go over all of the facts with him and look at whatever documents he have, in order to provide him with the best advice. In my opinion, it will be well worth the cost of the Assessment.
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Family Law Attorney
If the agreement was silent as to the issue of child support it was somewhat defective and whether or not the the ex-wife was represented by counsel is crucial. In addition, child support is a right that neither party can waive because it is a right that belongs to the child, not the parents. Yes, the ex-wife can go to court; whether or not she will be successful will depend on the facts. Hire counsel.
This answer is provided for educational purposes only. By using or participating in this site, you agree and understand that there is no attorney-client privilege between you and the attorney responding. This site cannot be used as a substitute for competent legal advice from a licensed attorney that practices law in the State having jurisdiction over your matter, and who has experience in the area of law you are asking questions about, and with whom you would have an attorney-client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question, or in the State having jurisdiction over your matter.