In most areas of family law practice negotiating before filing a contested action can reduce the stress and expense of litigation. However, when one is trying to modify child support, it is imperative to file and serve the action as soon as possible.
The reason is S.C. Code § 63-17-310, which reads:
The family court has the authority to enforce the provisions of any decree, judgment, or order regarding child support of a court of this State, including cases with jurisdiction based on the revised Uniform Reciprocal Enforcement of Support Act, provided that personal jurisdiction has been properly established. This authority includes the right to modify any such decree, judgment, or order for child support as the court considers necessary upon a showing of changed circumstances. No such modification is effective as to any installment accruing prior to filing and service of the action for modification. Additionally, the family court has the right to hold any arrearage in child support in abeyance.
This code provision allows the family court to retroactively modify child support but only for installments accruing after the date of filing and service. Waiting months before filing and serving a support modification action in an attempt to negotiate only prevents the court from retroactively modifying ongoing support and simply allows the opposing party to benefit from further delay.
South Carolina appellate courts have interpreted this provision of § 63-17-310 strictly. In SCDSS v. Polite, 391 S.C. 275, 705 S.E.2d 78 (Ct. App. 2011) the family court gave a father a retroactive adjustment prior to the date he filed and served his modification case because it found that DSS’s failure to assist him in obtaining an adjustment during the eighteen months he had sought it prior to filing “worked an injustice.” The Court of Appeals reversed, finding that strict compliance with the filing and service provisions of § 63-17-310 was required before the court could retroactively adjust child support.
Every month one delays in filing and serving a support modification case is a month the family court cannot modify support. One does not need to seek temporary relief to obtain the adjustment retroactively but without a filed and served support modification action one simply cannot obtain a court ordered retroactive modification. Any attorney familiar with this code section will refuse to negotiate retroactive modifications for periods prior to the date of service. Thus, when seeking to modify child support one should file and serve the complaint as soon as possible after being retained.
Greg: This is another reminder of why lawyers should read advance sheets and blogs as soon as possible. I read this yesterday. I particularly noted “No such modification is effective as to any installment accruing prior to filing and service of the action for modification.” I never notices the “service of the action” part before. This morning I went to a mediation. The father wants a retroactive reduction to September 27, 2012, the date of filing; however, he did not serve his complaint until February 27, 2013. Thanks for your timely post. :-) (my wife says 71-year-olds should not use smiley faces.)