How Far Back Can Child Support Be Recalculated?

Ordinarily, proceedings to modify child support or related expenses are retroactive to the date of filing of the new application or petition. However, proceedings that argue that the court order or settlement agreement didn’t comply with the relevant requirements of the Child Support Standards Act are treated differently. Where the court finds, sometimes many years later, that an order, or an agreement, is non-compliant, it has to recalculate child support and related obligations retroactive to the original date of the order or agreement. Non-compliance can happen for a variety of reasons such as an invalid opt-out provisions or a failure to include proper acknowledgment clause.

In Martelloni v. Martelloni, the Appellate Division, Second Department, held that the trial court erred in failing to grant wife’s motion for recalculation of unreimbursed medical and childcare costs retroactive to parties’ stipulation of settlement date of January 12, 2012. Parties’ stipulation of settlement survived but was not merged into divorce judgment.

In 2014 wife commenced plenary action to vacate and recalculate medical and childcare expenses retroactive to the date of stipulation. In 2015 court consolidated wife’s plenary action with another post judgment matrimonial proceeding and determined stipulation provision pertaining to unreimbursed medical was invalid as it deviated from CSSA without an acknowledgment, and dismissed wife’s plenary action due to consolidation. Wife then filed motion to compel husband to pay pro-rata share of unreimbursed medical and childcare, retroactive to 2012 stipulation date.

The Appellate Division held that the trial court improperly determined reimbursement of medical and childcare costs were retroactive only to the date of filing of the motion. It held that since wife properly commenced plenary action to vacate and recalculate stipulation provision which action was consolidated, court should have granted recalculation of arears owed retroactive to date of parties’ stipulation of January 2012.

This determination is likely to create an unexpected financial obligation for the now ex-husband. The amount of it is likely to be significant since it had merited an appeal. In my practice as a child support attorney, I see a surprisingly high number of orders and agreements that for one reason or another do not comply with the Child Support Standards Act. Under appropriate circumstances, those situations represent an opportunity to undo a bad agreement or wrong court decision.

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