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  1. #1
    dadofgreatkid is offline Member
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    child support retroactive?

    What is the name of your state? NH

    My exwife filed a motion to change court order (same thing as modification?) April 16th. She is asking to modify our parenting schedule, sole decision making ability over our 7 year old son to be awarded to her, and child support payments (see "will a judge see through this?" in child custody forum for background, if needed). Our court date is not until July 14th.

    Although I am objecting to any reduction of my custodial time and the proposed reversal of 50/50 legal custody (and likely countering that I would like more parenting time during the school year based on her neglect of his homework), I will likely be ordered to pay child support as I make more money than my exwife does and NH child support guidelines say that 50/50 parenting time does not constitute automatic grounds for support obligation reductions.

    My question is if child support is ordered at our July hearing, will the judge make my payments retroactive to the date she filed her papers (April 16) or will they be ongoing from the court date only? If there is a possibility that I will owe retroactively from the date she filed, I would like to start setting money aside now so I don't immediately start in arrearages. I can't seem to find anything online answering this...
  2. #2
    proud_parent is offline Senior Member
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    In New Hampshire, a trial court may modify a child support order retroactive only to the date of service (rather than the date of filing).


    458-C:7 Modification of Order. –
    I. The obligor or obligee may apply to the court or, when the department of health and human services has issued a legal order of support pursuant to RSA 161-C, to the department, whichever issued the existing order, for modification of such order 3 years after the entry of the last order for support, without the need to show a substantial change of circumstances. This section shall not prohibit the obligor or obligee from applying at any time for a modification based on substantial change of circumstances.
    II. Any child support modification shall not be effective prior to the date that notice of the petition for modification has been given to the respondent. "Notice'' means:
    (a) Service as specified in civil actions; or
    (b) Acceptance of a copy of the petition, as long as the petition is filed no later than 30 days following said acceptance, and as long as the petitioner provides proof of acceptance by a certified mail receipt. Nothing in this subparagraph shall be construed to affect service as required by law.

    III. Whenever the court, pursuant to this chapter, modifies a support order which results in an overpayment of support, the court shall order, absent a showing of undue hardship, the obligee to directly reimburse the obligor for such overpayment of support or order an adjustment to the modified support order until reimbursement of the overpayment has been satisfied. Any reimbursement ordered shall be only for an overpayment that occurs after the date that notice of the petition for modification of support order was given to the respondent. The court shall enter an order for reimbursement as a provision of the modified order, which order for reimbursement shall take effect 30 days after issuance, unless either the obligor or obligee requests, within such 30-day period, a separate hearing to determine the amount and frequency of reimbursement.
    Source. 1991, 233:1. 1995, 310:175, 181. 2004, 169:1, eff. July 23, 2004. 2007, 274:1, eff. Jan. 1, 2008.


    [url]http://www.gencourt.state.nh.us/rsa/html/XLIII/458-C/458-C-mrg.htm[/url]


    I would advise you to start setting the money aside in an interest bearing account in case a retroactive increase is indeed ordered.
  3. #3
    dadofgreatkid is offline Member
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    Quote Originally Posted by proud_parent View Post
    In New Hampshire, a trial court may modify a child support order retroactive only to the date of service (rather than the date of filing).


    458-C:7 Modification of Order.
    I. The obligor or obligee may apply to the court or, when the department of health and human services has issued a legal order of support pursuant to RSA 161-C, to the department, whichever issued the existing order, for modification of such order 3 years after the entry of the last order for support, without the need to show a substantial change of circumstances. This section shall not prohibit the obligor or obligee from applying at any time for a modification based on substantial change of circumstances.
    II. Any child support modification shall not be effective prior to the date that notice of the petition for modification has been given to the respondent. "Notice'' means:
    (a) Service as specified in civil actions; or
    (b) Acceptance of a copy of the petition, as long as the petition is filed no later than 30 days following said acceptance, and as long as the petitioner provides proof of acceptance by a certified mail receipt. Nothing in this subparagraph shall be construed to affect service as required by law.

    III. Whenever the court, pursuant to this chapter, modifies a support order which results in an overpayment of support, the court shall order, absent a showing of undue hardship, the obligee to directly reimburse the obligor for such overpayment of support or order an adjustment to the modified support order until reimbursement of the overpayment has been satisfied. Any reimbursement ordered shall be only for an overpayment that occurs after the date that notice of the petition for modification of support order was given to the respondent. The court shall enter an order for reimbursement as a provision of the modified order, which order for reimbursement shall take effect 30 days after issuance, unless either the obligor or obligee requests, within such 30-day period, a separate hearing to determine the amount and frequency of reimbursement.
    Source. 1991, 233:1. 1995, 310:175, 181. 2004, 169:1, eff. July 23, 2004. 2007, 274:1, eff. Jan. 1, 2008.


    [url]http://www.gencourt.state.nh.us/rsa/html/XLIII/458-C/458-C-mrg.htm[/url]


    I would advise you to start setting the money aside in an interest bearing account in case a retroactive increase is indeed ordered.
    So even though this is not an increase in child support, it may still be retroactive to May 28th? (She filed April 16th but I was not served until May 28th). Our previous court order was no child support award. This would be our first child support award, not an increase. Does that make a difference? Or no because it's "increasing" from zero dollars to X amount?
  4. #4
    proud_parent is offline Senior Member
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    Quote Originally Posted by dadofgreatkid View Post
    So even though this is not an increase in child support, it may still be retroactive to May 28th? (She filed April 16th but I was not served until May 28th). Our previous court order was no child support award. This would be our first child support award, not an increase. Does that make a difference? Or no because it's "increasing" from zero dollars to X amount?
    Sorry, I had inferred from your previous post that your orders explicitly state that neither parent is obligated to pay support, as opposed to there being an absence of a support order.

    In the case that this is a petition to establish a support order rather than to modify an order for 0$ support, then yes...for a non-TANF case in NH, you'd be wise to plan for the order to be established retroactive to filing. It can't hurt to be prepared.
  5. #5
    dadofgreatkid is offline Member
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    Update!

    I had my meeting with my lawyer on Wednesday afternoon. I dropped off all my current and past paperwork with him (legal documents, notes I have been taking etc). After reviewing everything (especially my divorce decree) my lawyer recommends that we file a motion of contempt against my ex-wife prior to our July 14th modification hearing.

    Our divorce decree/parenting plan/support order states that legal and physical custody will be shared 50/50, there will be no child support award and that "parties agree to share all reasonable child rearing expenses including daycare equally." It also states that medical expenses will be shared 50/50 but do not specifically designate who will provide medical insurance for our son.

    I have provided his medical insurance for the past 5 years (since our divorce) as well as covered all of his daycare expenses. Since the court order specifically states daycare costs will be split as well, my lawyer recommends that we file for reimbursement of her portion of the insurance premiums and daycare costs. My ex-wife and I had previous discussed that she never paid her portion of the insurance premiums and she consented to reimbursing me for those costs (which never happened, but I digress). The real issue is the daycare expenses.

    My ex-wife works as a massage therapist and makes her own hours. I work for a large corporation 7am-4:30pm so I require the use of a daycare to provide transportation to and from school. While our son is with her for her custodial week she drives him back and forth to school (he is now in second grade) instead of utelizing the daycare program that I use during my weeks because she says she can't afford to pay to send him there. Before our son began grade school she worked only on weekends and I watched our son every weekend in addition to my regularly scheduled custodial time, providing her child care while she worked. She never offered to bring him to school for me on my custodial weeks so I didn't have to pay for daycare (before anyone gets mad - I never expected her to!).

    My question is this - is it really possible to get reimbursed for 50% of the daycare expenses even though she is not utelizing the daycare? Is that an appropriate 50/50 "sharing of all reasonable expenses including daycare"? I never asked her to pay half before...
  6. #6
    LdiJ is offline Senior Member
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    Quote Originally Posted by dadofgreatkid View Post
    I had my meeting with my lawyer on Wednesday afternoon. I dropped off all my current and past paperwork with him (legal documents, notes I have been taking etc). After reviewing everything (especially my divorce decree) my lawyer recommends that we file a motion of contempt against my ex-wife prior to our July 14th modification hearing.

    Our divorce decree/parenting plan/support order states that legal and physical custody will be shared 50/50, there will be no child support award and that "parties agree to share all reasonable child rearing expenses including daycare equally." It also states that medical expenses will be shared 50/50 but do not specifically designate who will provide medical insurance for our son.

    I have provided his medical insurance for the past 5 years (since our divorce) as well as covered all of his daycare expenses. Since the court order specifically states daycare costs will be split as well, my lawyer recommends that we file for reimbursement of her portion of the insurance premiums and daycare costs. My ex-wife and I had previous discussed that she never paid her portion of the insurance premiums and she consented to reimbursing me for those costs (which never happened, but I digress). The real issue is the daycare expenses.

    My ex-wife works as a massage therapist and makes her own hours. I work for a large corporation 7am-4:30pm so I require the use of a daycare to provide transportation to and from school. While our son is with her for her custodial week she drives him back and forth to school (he is now in second grade) instead of utelizing the daycare program that I use during my weeks because she says she can't afford to pay to send him there. Before our son began grade school she worked only on weekends and I watched our son every weekend in addition to my regularly scheduled custodial time, providing her child care while she worked. She never offered to bring him to school for me on my custodial weeks so I didn't have to pay for daycare (before anyone gets mad - I never expected her to!).

    My question is this - is it really possible to get reimbursed for 50% of the daycare expenses even though she is not utelizing the daycare? Is that an appropriate 50/50 "sharing of all reasonable expenses including daycare"? I never asked her to pay half before...
    Normally in a true 50/50 situation each parent takes care of daycare costs during their own time.....which is exactly what you are doing here. Obviously your attorney believes that the language in your order allows you to file for contempt for her not paying for 1/2 of the daycare costs during your time, but how would you feel if the roles were reversed?

    Lets say that you worked from home and did not need daycare during your week...would you feel that it was fair that you would have to pay 1/2 of her daycare costs?

    Obviously you can file for contempt and your attorney believes that you should. However, keep in mind that she can argue that she is taking care of her half, and you are taking care of yours.
  7. #7
    dadofgreatkid is offline Member
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    Quote Originally Posted by LdiJ View Post
    Normally in a true 50/50 situation each parent takes care of daycare costs during their own time.....which is exactly what you are doing here. Obviously your attorney believes that the language in your order allows you to file for contempt for her not paying for 1/2 of the daycare costs during your time, but how would you feel if the roles were reversed?

    Lets say that you worked from home and did not need daycare during your week...would you feel that it was fair that you would have to pay 1/2 of her daycare costs?

    Obviously you can file for contempt and your attorney believes that you should. However, keep in mind that she can argue that she is taking care of her half, and you are taking care of yours.
    That's the reason I never asked for reimbursement before - I was under the assumption that I was paying for his needs while he was with me and she was paying for his needs while he was with her.

    However, she didn't have to pay for child care while he was with her, because I watched him while she worked. If I hadn't then she would have had child care costs and then we would have actually been sharing costs versus me incurring the only costs.

    She is now asking for child support because I make more money and NH does not automatically adjust child support obligations even when physical custody is split 50/50. My lawyer wants to file the contempt before the court order for child support gets modified. Once it's modified I will be paying child support to her and will lose the verbiage of "sharing all costs including daycare equally".

    I supposed I'll just do what my lawyer says and include the daycare costs as well as the insurance premiums in the motion. If they judge only orders the insurance reimbursement, I'm ok with that. After all, I already spent the money! It's not like it's a bill waiting to be paid that I can't afford.
    Last edited by dadofgreatkid; 06-13-2008 at 11:48 AM.

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