New Jersey Divorce and Family Lawyer Blog
If divorcing parties have children, the support of these children is one of the issues that needs to be addressed. In the majority of cases the “amount” of child support is fairly easy to determine – the incomes of most families fall within the range covered by the Child Support Guidelines; a formula established by Court Rule. The next question I am frequently asked (usually by the payor parent) is for how long does this child support need to be paid – usually followed by the comment: “To 18 right, since this is considered the age of majority?” I then have to explain that while this may be the case in some states, in New Jersey the end of child support is not necessarily tied to any specific age, but rather ends when a child is considered “emancipated”. Generally child support would continue to be payable until it is determined that the child is emancipated, and the burden rests upon the payor to establish why child support should be terminated. However, legislation has recently been introduced in both the New Jersey Assembly (A-A2721) and Senate (S-1046) which would have the effect of drastically shifting that burden. Under this proposed legislation, in the absence of certain enumerated exceptions, the obligation to pay child support would terminate by operation of law when a child reaches age 19. If a recipient wants to continue child support on behalf of a child who is beyond age 19, the recipient would have the burden of petitioning the Court to do so under the circumstances that (1) the child is still enrolled in high school or other secondary education program; (2) the child is participating full-time in a post-secondary education program; (3) the child has a physical or mental disability that existed prior to the child reaching the age of 19 and requires continued support; or (4) other exceptional circumstances as may be approved by the Court. Even if the Court were to grant an Order for the continuation of child support, that Order must include a future date upon which either the extended child support would terminate or upon which a further review would be conducted by the Court. Even an agreement by both parents to continue child support past age 19 would require court approval and only to another specific predetermined termination date. If this legislation passes, it would not only shift the burden from the payor parent seeking to terminate support to the recipient parent seeking to continue it. It would establish by operation of law a presumptive age at which child support would terminate and reverse years of legal precedent.
The New Jersey Supreme Court in the leading case of Newburgh v. Arrigo, 88 N.J. 529 (1982), addressed the issue of emancipation as applied in this State, including the extent to which the child’s attainment of the age of majority, now 18 (N.J.S.A. 9:17B-3) would affect a duty to support. The Court noted that while the attainment of age 18 established a prima facie, but not conclusive proof of emancipation, whether a child was emancipated at age 18, with the correlative termination of the right to parental support, depended upon the facts of each case. The Court noted that in appropriate circumstances, the privilege of parenthood comes with it the duty to assure a necessary education of children, including college and even a post-graduate education, deferring a child’s emancipation and extending a duty to support in the process.
The Courts of this State have routinely rejected arguments that attempted to equate a child reaching the age of 18 with emancipation per se. Div. of Social Services v. C.R., 316 N.J. Super 600 (Ch. Div. 1998) (a child who reaches the age of majority is not “automatically” emancipated); Patetta v. Patetta, 358 N.J. Super 90 (App. Div. 2003) (no specific age equates to emancipation of the child); Dolce v. Dolce, 383 N.J. Super 11 (App. Div. 2006) (Emancipation – the conclusion of the fundamental dependent relationship between parent and child – is not a self-executing principle. It does not occur automatically, by operation of law, simply by reason of the dependent child reaching the age of majority). In so doing, the Courts have recognized that the essential inquiry is whether the child has moved beyond the sphere of influence and responsibility exercised by a parent and obtained an independent status of his or her own, a determination which involves a critical evaluation of the prevailing circumstances including the child’s needs, interests and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things. Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997). Our Courts have gone so far as to reject enforcement of a provision of a parties’ Property Settlement Agreement which had deemed a child emancipated at age 18 where that child continued to live at home while attending college full-time, holding that the right of support belonged to the child, not the custodial parent and that a parental duty to support a child may not be waived or terminated by a Property Settlement Agreement. Patetta, Supra.
Under this proposed legislation these decades of legal precedent would be significantly altered. For some, they may welcome the self-executing nature of the law and that the shifting burden may reduce possible abuse and prevent a parent from having to pay unwarranted child support that may not be retroactively modified. However, rather than reduce litigation, this law potentially risks even more litigation as parents and children are forced to petition the court for continued child support, particularly in a state where such a large percentage of children continue their education after high school. The New Jersey State Bar Association has opposed this bill and its fate remains unknown. While the proposed legislation to amend the alimony laws continues to be debated with much publicity, this legislation, which could dramatically impact child support law, deserves equal scrutiny. I will keep you abreast as further updates warrant.