Emancipation and Child Support in New Jersey

Emancipation is a legal act that serves two purposes:

• It releases the child from his or her parents’
• It ends the parents’ requirement to support the child.

As of February 1, 2017, a parent’s obligation to support a child in New Jersey ends automatically when the child turns 19.

In order for the child to remain unemancipated and for continued child support to be mandated, the custodial parent or the child must request an extension. That extension will be given if the child is still in high school, if he or she is enrolled full time in a secondary program, or if the child has a mental or physical disability.

In all instances, child support ends when the child turns 23. If additional assistance is called for, then a different means of support must be obtained.

Ricci v. Ricci

The case called Ricci v. Ricci was decided by the Appellate Division in November 2016 and published in February 2017. It was originally heard in the Superior Court of New Jersey, Family Part, Camden County.

Background Information

Caitlyn Ricci’s parents divorced when she was a young child. Her mother was the custodial parent.

When Caitlyn graduated from high school, her parents did not think that she was ready to live on her own because of what they referred to as “behavioral problems.” Therefore, they said they would pay for her to attend a community college and after that a local university.

Caitlyn’s relationship with her parents worsened. At age 19 she left her mother’s home and moved in with her paternal grandparents, who were estranged from her father.

The Riccis executed an agreement that declared their daughter emancipated.

Caitlyn was granted permission by the court to intervene in her parents’ matrimonial case. The trial court ruled that she was to be considered unemancipated for the purpose of receiving child support for her college expenses. Her parents were ordered to pay her 2013–2014 tuition for the community college, which was less than $2,000.

Before completing her degree from the community college, however, Caitlyn transferred to Temple University.

On October 11, 2014, a new judge enforced the previous order and applied it to Temple University, which was much more expensive. The court ordered Caitlyn’s parents to pay their daughter’s fees, books, and tuition.

Appellate Court

The Riccis appealed this ruling, and the case went to the Appellate Division.

Caitlyn’s parents said that their daughter voluntarily moved out of her mother’s home. They further claimed that she had refused to comply with their rules and that she had no contact with either of them for the six months prior to taking this legal action against them.

Caitlyn, on the other hand, insisted that her parents’ rules were unreasonable and that she followed them as best she could. She explained that what they called bad behavior was merely typical behavior for those her age. She also alleged that her parents’ motive for declaring her emancipated was to avoid paying for college.

Findings of the Appellate Division

The Appellate Division ordered the case back to the trial court for a plenary, or complete, hearing. It stated that this type of hearing should have been held to determine whether Caitlyn should be considered emancipated or unemancipated before the court ordered the Riccis to pay even for the community college.

In its summary the Court emphasized the fact that children of divorce are entitled to support that equals the standard of living before their parents separated. It also cited the following principles:

• An unemancipated child is entitled to support without regard to whether he or she lives with one parent, both parents, or neither parent.
• The best interests of the child are of utmost importance in all family matters.
• Child support belongs to the child, not the parent. The fact that the custodial parent and the noncustodial parent agree that child support should end is irrelevant.

In determining whether or not the Riccis will have to pay their daughter’s college bills, two questions will have to be asked:

• Is Caitlyn unemancipated?
• Does Catlyn have an aptitude for college?

If both are answered in the affirmative, then the ability of each parent to pay will have to be addressed. When ascertaining a parent’s ability to pay for a child’s college expenses, a Newburgh hearing is often held.

Newburgh Factors

The proceeding known as a Newburgh hearing is named after a 1982 case heard in the New Jersey Supreme Court.

There are twelve factors that are used to determine the obligation of each parent. Among these factors are the amount of the contribution sought; the financial resources of each parent; the ability of the child to earn money; and the availability of grants, loans, and scholarships. Do you need representation at a Newburgh hearing or help with another family-court matter? Do you have questions about child support? The experienced divorce and family law attorneys at Aretsky Law Group, P.C., can help. For an initial consultation, call us 24/7 at 800-537-4154.

As a result of this new law, in New Jersey child support will automatically cease when the child turns 19 with these exceptions:

• the child dies, marries, or joins the military; or
• a court order is issued specifying a different age at which support will end.

Differences Between This Law and the Previous One

There are three very important differences between this new law and the one that preceded it:

1. The new law raises the age of presumptive emancipation from 18 to 19.

Under the old law, a child was presumed to be an adult no longer entitled to child support at age 18. Under the new law, the age at which a child is presumed to be emancipated is 19.

2. The new law puts the burden of proof on the recipient of child support.

Under the previous law it was the responsibility of the party who was paying child support to convince the court that child support payments should stop.

The new law shifts the burden of proof to the recipient, who now must prove to the court why child support should continue past age 19. What’s more, unless the recipient petitions the court before the child reaches age 19, support will automatically end. The court will not consider petitions it receives after the child’s 19th birthday.

3. Child support must end at age 23.

Previously, the law regarding when child support must end was open ended. The new law provides that in all instances child support must stop at age 23. If assistance is needed after that, other sources must be obtained.

Frequently Asked Questions:

1. What are valid reasons to request continued child support beyond age 19?

The following are accepted reasons to petition the court for a continuation of child support:

• the child is enrolled in a high school or other secondary education program, such as a vocational school;

• the child is enrolled full time in a post-secondary program;

• the child has a mental or physical disability that requires support and the condition must have existed before his or her 19th birthday;

• the payor and the recipient previously reached a separate agreement; or

• continued support has been granted by the court.

2. I receive my payments from the Probation Division. Will I be notified prior to termination of child support?

Yes, if payments are made from the Probation Division, both the payor and the recipient will be notified of the pending termination 180 days before the child’s 19th birthday. (The number of days varies for children turning 19 to 22 before July 31, 2017.)

If no request for a continuation of support has been made, another notice will be sent to both individuals 90 days prior to the child’s 19th birthday. Upon the child’s 19th birthday, if no petition has been made, support will automatically be terminated.

If you do receive a continuation, then you will again be notified of the final termination 90 days before the extended date. Again, this is provided you are getting your payments through the Probation Division.

3. I receive my payments directly from my ex-spouse. Will I still be notified prior to termination?

No, if you receive your payments directly from the payor, neither of you will be notified. It will be your responsibility to request a continuation of support if you think it is warranted.

Remember, it is the recipient’s responsibility to know that the requirement for child support has ended. Keep in mind that as the recipient, you may change the option to receive payments directly and instead choose to have payments sent from the Probation Division. This would ensure that you are notified before the deadline for petitioning the court arrives.

4. How do I petition the court for a continuation of support?

If you receive your payments from the Probation Division, instructions for filing a petition will be included in the notification of the pending termination. You will also be provided with information regarding the change in the amount you will receive.

It is important that the Child Support Program has your current mailing address, phone numbers, and email address so that you are aware of any changes and notifications.

If you are not getting your payments through the Probation Division or need more information for any reason, visit www.njchildsupport.org.

5. My judgment of divorce provides for child support to continue until my child is 23. Do I still have to petition the court?

No, your judgment of divorce or child-support order will prevail. However, you may be asked to show proof of the court order.

Keep in mind, however, that even if your agreement extends payments beyond then, enforced child support will end when the child turns 23.

6. Our judgment of divorce states that both parents will share in the cost of our children’s college education. Does the new law have any impact on that portion of our agreement?

No, providing a college education is separate from child support.

7. I am in the process of negotiating a divorce agreement. Can I request that the provision for a continuation of support past age 19 be included as part of the settlement?

Yes, if both parties agree, then that can be part of the original agreement. The benefit to the recipient is that it will not be necessary to request a continuation when the child turns 19.

Laws Change: Contact a Qualified NJ Attorney

Laws change. If you are uncertain about how the new Child Support Bill and other legislation impacts you and your children, you should seek the advice of an experienced New Jersey custody and child support attorney to help you understand your unique situation.

Do you have questions about child support or other family law issues? Contact the child support lawyers at Aretsky Law Group, P.C., today for an initial consultation.

Call us 24/7 at 800-537-4154.

In a recent ruling Judge Jones of the Ocean County Superior Court affirmed that under certain circumstances the Court can deviate from New Jersey’s Child Support Guidelines when calculating child support. Among the reasons for deviation allowed by the Guidelines is a child’s giftedness in a particular area.

The case in question was P.S. v. J.S., with P.S. being the father-plaintiff and J.S. being the mother-defendant. They had joint legal custody of their 13-year-old daughter, to whom the judge gave the pseudonym Julie. The mother had primary physical custody, but the father enjoyed liberal parenting time.

Julie had an intense interest in acting, and both parents encouraged these pursuits. However, they did not agree as to who should be responsible for the extra costs incurred because of her interest.

Both J.S. and P.S. had modest incomes although P.S. earned more. P.S. believed that Julie’s acting activities were already taken into consideration when the Court determined that his child support payment would be $113 per week. J.S. maintained that she needed all of that just to provide for their daughter’s basic needs. She asked that the Court raise that amount to cover half of the expenses related to Julie’s acting.

Can a Child’s Special Talent Be a Factor in Child Support?

Judge Jones considered the following factors when making his determination:

1. In most cases a child’s extra-curricular activities are included when using the New Jersey Child Support Guidelines to calculate the amount of child support.
2. The Guidelines specifically allow for deviation for various reasons. One of those reasons is “giftedness.”
3. A child’s giftedness may relate to academics, athletics, technology, or the arts; however, it is not limited to these.
4. Even if the Court determines that the child is gifted, additional funds to foster that gift must be economically reasonable and the parents’ financial situations should be considered.

Child’s Giftedness May Be Considered

The judge noted that giftedness, especially in the arts, can be very subjective and must be analyzed on a case-by-case basis. In the process of deciding whether or not Julie’s interest in acting rose to the level of giftedness, Judge Jones relied on impressions he had as the result of interviewing Julie on a few occasions. He determined that she was, in fact, gifted, basing his decision on her “inherently extraordinary drive, desire, focus and commitment.”

The Court ordered that unless J.S. and P.S. mutually agreed to a different amount, each parent would pay $250 per year to cover the added expenses related to Julie’s acting activities. The judge noted that he would have ordered that P.S. pay a larger portion, but J.S. had only asked that her ex cover half of the expense; therefore, he divided the amount equally.

Many children participate in several extra-curricular activities. Judge Jones stressed that his ruling should not be seen as a requirement for a parent to pay for just any activity a child likes.

There are many factors that are considered when a calculation of child support is made. A qualified New Jersey Child Support attorney can help you understand your rights and obligations.

The purpose of the Probation Department is to protect the child by doing all it can to ensure that the custodial parent receives the funds necessary to care for that child. That’s why the NJ family court judge will automatically order that payments be made through the Probation Department. It is up to the recipient to request direct payments.

Benefits of Probation

There are some important benefits of probation, especially if you cannot depend upon the payer to make the payments in a timely manner.

General

• Money will be garnished from the payer’s wages and deposited directly into your bank account.
• Payments will be made at a regular time each month.

• You will have access to a verifiable record of the payments.

• You will be able to check the payments online.

• The Probation Department conducts automatic cost-of-living adjustments every two years.
• The cost-of-living adjustment may result in an increase in the amount of child support.

If the Payer Is in Arrears

• Because the Probation Department garnishes wages, if the payer is employed, payments are guaranteed.
• The Probation Department has other tools at its disposal to collect from self-employed payers.
• If the payer is behind in payments, the court can arrange for state and/or federal tax refunds to be sent to the payee instead.
• The department has the ability to revoke or decline to renew a driver’s license.
• The department has the ability to revoke professional licenses.

Is Direct Pay an Option?

Of course, if you are the custodial parent, you are within your rights to request that payments be made directly to you without going through probation.

If you and your child’s other parent have a good relationship and if you believe that the payments will be made in good faith, then this option is possible. However, it is crucial that you understand the consequences if at some point he or she stops making payments in a timely manner.

A qualified NJ family law attorney can analyze your situation and explain what would be in your best interests. If you decide that you prefer direct payments, then your lawyer can include provisions in your child-support agreement that protect your interests; for example, it can be specified that automatic payments must be made directly into your bank account. In addition, a provision can be included in your agreement that provides if the payer is late with any direct payment, all future payments shall be payable through the Probation Department.

Contact an Experienced NJ Lawyer

Child support is an important matter. It affects the life of your child now and in the future. Contact an experienced New Jersey divorce and family law attorney for questions about child support, parenting time, spousal support, and other important issues before making decisions that will affect you and your children for many years.

Aretsky Law Group, P.C., will help you understand the issues involved. We will guide you through the process to ensure that your divorce agreement or modification meets the needs of you and your children. We will do everything we can to come to an agreement between you and your ex-spouse; however, if an agreement cannot be reached, we will vigorously represent you to protect your rights and to enable you to provide the best education possible for your children.

We are also able to provide assistance in the filling out and filing of the FAFSA, which is necessary if your child is applying for financial assistance.

Private Elementary and Secondary Schools

New Jersey courts may consider child support for private or religious school to cover tuition and other expenses. Several factors, including the following, will be taken into account by the judge:

• the quality of the public schools available;
• the ability of the parents to pay; and
• the educational career of the child.

If you and your ex-spouse cannot agree on whether or not your child would benefit from private elementary or secondary education, these issues will be decided by a family court judge. You will need a skilled attorney, knowledgeable in the laws of New Jersey, to advocate on your behalf.

College Expenses

The best interests of the child will be the main priority of the Court. New Jersey courts consider a college education a necessity. They generally require parents to contribute to their children’s college education if they are financially able to do so. For this reason, it is vital that divorcing couples work out the sharing of college expenses at the time their divorce agreement is being negotiated or in a post-divorce modification if the agreement has already been finalized without these provisions. Our team of knowledgeable divorce lawyers can assist you in all of these matters and help you navigate these difficult issues.

The Divorce Agreement

The issues surrounding college expenses must be spelled out clearly and specifically in your divorce agreement. These are among the questions that must be answered so that the payment of college expenses meet with the educational and financial expectations of you and your child:

1. Who will pay for preparation expenses? These include but are not limited to test preparation books and courses, college visits, and applications.
2. Who will pay for room and board? Who will pay for tuition? Will one party pay for all? If not, how will these costs be divided?
3. Who will pay for textbooks?
4. Who will provide spending money?

Post-Divorce Modification

Some couples—especially those whose children are very young—fail to consider college expenses when they are working out their divorce agreement or property settlement. This can be rectified through the creation of a post-divorce modification.

Financial Aid

If financial aid is necessary, it is also crucial that these conditions are included:

1. Who should have primary custody for the year prior to applying for financial aid?
2. Have both parents agreed to share financial information in a timely manner so that the child can file the FAFSA form and the CSS profile?
3. Is insurance necessary in case something happens to one or both parents?
4. Will the agreement include a cap on expenses or on the length of time the student has to complete the course of study?

FAFSA

FAFSA is an acronym for Free Application for Federal Student Aid. This form is published by the United States Department of Education. Universities and colleges use the FAFSA as a means of making an initial determination for a student’s eligibility for financial aid.

FAFSA does not award financial aid, but it is very important for those who are applying for this aid.

FAFSA bases its findings on the income of whoever was the custodial parent during the 12-month period prior to the application. If the child’s custodial parent is the higher-income parent, it may be beneficial to change the child’s primary residence starting with the middle of the child’s junior year in high school.

CCS

The College Scholarship Service, or CCS, publishes a profile application used by some private institutions to decide whether or not to grant financial aid.

The Court Decides

If a couple’s divorce decree, property settlement, or post-divorce modification does not address the issue of who pays for what regarding college expenses, then the Court will probably order a plenary, or complete, hearing. Named after the 1982 case Newburgh V. Arrigo, this hearing is sometimes called a Newburgh hearing. As a result of that case, the Supreme Court of New Jersey ruled that parents are obliged to provide a college education.

First the Court must ascertain whether or not one or both parents are financially capable of contributing to the college expenses. If it decides that they are, then it must consider each of these twelve factors in order to determine who should pay for what:

1. Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
2. The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
3. The amount of the contribution sought by the child for the cost of higher education;
4. The ability of the parent to pay that cost;
5. The relationship of the requested contribution to the kind of school or course of study sought by the child;
6. The financial resources of both parties;
7. The commitment and aptitude of the child for the requested education;
8. The financial resources of the child, including assets owned individually or held in custodianship or trust;
9. The ability of the child to earn income during the school year or on vacation;
10. The availability of financial aid in the form of college grants and loan;
11. The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
12. The relationship of the education requested to any prior training and to the overall long-range goals of the child.

If the child is working full time during the school year, then he or she may be expected to contribute as well.

Although there are a few circumstances under which a judge might rule in favor of a parent who does not want to contribute to a child’s college expenses, those situations are rare. New Jersey courts believe that a college education is a basic right and that it is the parents’ responsibility to contribute towards that education. It is best for all involved if these matters are agreed upon in advance.

If you are in need of a divorce agreement, a property settlement, or a post-divorce modification, or if you require representation at a Newburgh hearing, the dedicated family-law attorneys of Aretsky Law Group will work diligently to protect your interests.

Mr. Kayahan, the defendant, father and noncustodial parent, filed a motion with the court to emancipate his daughter, in which case he would no longer be required to provide child support. Alternatively, he asked that the amount of child support be reduced and that he be allowed to pay his child, given the pseudonym Dina by the judge, directly.

Because Dina, who had recently graduated from community college, was about to enter a university as a full-time college student, the judge refused Mr. Kayahan’s request to emancipate her. Citing the fact that Mr. Kayahan’s income had been greatly reduced since the last court-ordered child support obligation was determined, the judge did rule in his favor regarding his request to reduce the amount he was required to pay. However, he ruled against him in his request to pay Dina directly. What is important about the ruling, however, is that he stated that in some cases it would be appropriate to pay a child over the age of 18 directly.

In his legal analysis of his findings, Judge Jones cited a few previous cases that supported his opinion. The most recent was Jacoby v Jacoby. In that case the court stated that it “may be more appropriate for a parent to provide direct payments to the student for some of the child’s support needs rather than to the other parent.” Although the court in this case left the matter undecided, it did open the door for this line of reasoning.

Benefits and Drawbacks

Judge Jones explained why direct payments of child support to the child might be beneficial as well as what some potential problems might be:

Possible Benefits

• The child could gain experience handling financial matters, a skill the judge believes is often neglected in schools.

• The child might gain a better understanding of the noncustodial parent’s contribution to his or her welfare.

• The relationship between the child and the noncustodial parent might improve because of the increased communication between the two.

Possible Drawbacks

• The child might not use the funds as instructed.

• The noncustodial parent might skip one or more payments and try to convince the child not to seek payment.

• The custodial parent might need to have control of the funds in order to maintain the household in which the child still lives.

Safeguards

The court made it clear that the decision to grant permission must be made on a case by case basis and that the child in question must be over 18 years of age.

In an effort to safeguard against the possible drawbacks, Judge Jones suggested that several factors be taken into consideration. The following is a brief summary of the ideas expressed:

• The child, who must be over 18, must show an appropriate level of maturity.

• The child must have shown responsible behavior in the past.

• The noncustodial parent must have a record of timely payments.

• Direct payment should not adversely affect the custodial parent’s ability to maintain the household in which the child lives.

• Funds must be specifically earmarked; for example, to be used for college expenses.

• Use of the funds must be agreed upon by both parents or be pre-approved by the court.

• The child must provide both parents with documentation of how the money is spent.

The Court’s Decision

Because Mr. Kayahan’s income had greatly decreased since the amount of child support was last mandated, Judge Jones granted his request for a reduced payment. Despite the fact that Dina had shown a high level of maturity and was, in fact, working part time in order to earn the money to pay for a portion of her college expenses, the court ruled against Mr. Kayahan in his request to pay Dina directly. The reason he ruled against him was that the income of Mr. Kayahan’s ex-wife had also decreased. Dina still lived with her, and without her child support payments it would be impossible for her to maintain the household.

It is too soon to know what the effects of this ruling will be, but it stands to reason that it could be used as guidance in future cases of child support matters.