It is a common misconception that children automatically emancipate upon reaching the age of eighteen in New Jersey. In reality, there is no specific age when a child emancipates and child support payments terminate.
In fact, New Jersey law is clear that such findings are always fact-sensitive based on the circumstances of each case.
Read More about The Termination of Child Support Law—Benefit or Burden?
There are many rules in our court system pertaining to the filing of pleadings. In order to start a divorce case in court, a Complaint for Divorce must be filed. The date the complaint is marked “filed” is generally the date we use for valuing assets and debts subject to equitable distribution. In order to obtain court-ordered relief during the pendency of a divorce case with regard to temporary child support, alimony, or other issues, a motion must be filed requesting such relief. Generally, relief is granted as of the date that the motion was filed.
In some cases we choose not to file a complaint right away, with the hope of settling the case prior to getting involved in litigation in the court system. In other cases, we may file a Complaint for Divorce in order to establish the cut-off date for equitable distribution, but our goal may be to stay out of court and try to settle the case without court intervention.
A change in circumstances is a common occurrence in post divorce matters. The financial status of either divorcing party can easily change following a divorce. Considering that financial obligations, like child support, are calculated at the time of divorce, changes in financial status are especially impactful for those making the child support payments.
However, there is another factor to consider when attempting to modify child support payments: the geographical location of the parties. Again, many things can change following a divorce—for example, either party can move from the state that initially granted the divorce. If that happens, it opens up a whole host of new questions. The foremost of which has to be, Which state should the party attempting to modify the child support payments file their petition? Choosing a state that has proper jurisdiction over a child support modification is critical because different states have different laws that could significantly affect what the revised payments are.
The Uniform Interstate Family Support Act (UIFSA) addresses this exact question and provides guidance as to which state has jurisdiction over the modification of child support payments. The UIFSA has been codified by every state. For example, in New Jersey, N.J.S.A. 2A:4-30.72a provides that a State has continuing, exclusive jurisdiction over a child support order as long as the State remains the home of the obligor (the individual making the child support payments), the obligee (the individual receiving the child support payments) or the child who is the center of the child support order.
Read More about Jurisdictional Requirements of Child Support Modifications
One of the more vexing issues in a divorce case involves determining an appropriate level of alimony or child support. If the parties’ incomes are not disputed, the task is easier, but if one or both parties are unemployed or “underemployed,” the issue of determining a fair and reasonable level of potential income arises. To assist attorneys and judges, reference is often made to the New Jersey Department of Labor statistics, which track income information over a wide job spectrum and thereby allow courts to determine imputed, as opposed to actual, income for support calculation purposes.
In the recent case of Maine v. Maine, Superior Court Judge Lawrence Jones (Ocean County) had to determine a party’s potential earning capacity in the context of a divorce action. Although the court found that Ms. Maine had recently received training to become a medical assistant and that the Department of Labor’s average income for medical assistants was $32,400 per year, it was unreasonable to immediately impute such a level of income to her. Instead, the court gave Ms. Maine a four month grace period to make a documented search for employment as a medical assistant at the conclusion of which the matter would be reheard. In the interim, the court attributed a lower level of imputed income to Ms. Maine by extrapolating her part-time earnings into a forty hour workweek.
Judge Jones’ findings admirably balanced the legal and practical issues by not leaning too hard in either direction but fashioning a result which fit the situation. While imputing income remains an important tool for lawyers, the case stands for the proposition that such an approach should be tempered with the realities of the marketplace.
I have encountered this question, or variations of it, with some frequency over the years. My answer, while surprising to some, is always “no.” This is not to say that parties are barred from entering into settlement agreements concerning their children; on the contrary, New Jersey law strongly favors such settlements and will not interfere with them as a matter of course. There are exceptions to the general rule, however, especially in situations where the parties make an agreement which violates New Jersey public policy. Nowhere is this more obvious than in when children are involved.
This troublesome issue was recently addressed by the Appellate Division of the Superior Court in the case of E.C. v. C.W., decided on February 25, 2015. The facts, while somewhat convoluted, are that after many rounds of contentious proceedings involving custody of their young son, the parties entered into an agreement which was memorialized by a Consent Order signed by the trial judge stating that E.C. would get full custody of the child in consideration for C.W. never having to pay child support and forfeiting all future visitation. After further reflection, C.W. concluded that he had erred and filed an appeal seeking to set aside the agreement. The Appellate Division agreed.
The crux of the appellate court’s decision was that a trial court cannot, as a matter of law, uphold an agreement which violates New Jersey’s public policy on two fronts; first, the polestar legal issue of a child’s best interests and secondly, the legal doctrine that the right to child support belongs to the child, not to the parent. The appellate court emphasized that a parent’s right to visitation and the duty to support the child are not dependant and cannot be traded off.
The case is a good synopsis of New Jersey law on the subject of a court’s inherent authority to protect the best interest of a child. It is strongly recommended that a family law attorney be consulted before one enters into a settlement concerning his or her child(ren) in order to avoid later legal problems.
