Divorce FAQ's
1. What is child support?
Every child is entitled to support from his parents. The New Jersey child support guidelines are based on the theory that child support is determined in proportion to the parent’s income and assets as well as the child’s needs. All parents, whether natural or adoptive, have a financial obligation to support their child. This obligation continues even if the parties have divorced. A support award can be increased or decreased as circumstances may arise. In order for a party to change the amount of child support, the moving party must file a motion with the court, and establish a “change of circumstances.”
2. How does a person obtain a child support order?
When a parent needs to obtain child support, she must make an application to the Superior Court where the parent and child reside. Normally, the clerk has pro se forms that they give to the pro se litigants. The clerk will then interview the applicant and try to obtain as much info as possible. The clerk will want to ascertain where the father lives, and where he works.
Once a party makes an application for child support the Family Division will then schedule the case for a hearing. The court will then mail notices to appear to all parties in the case. The notice advises the parties as to the time, date and place to appear. If the parties are not filing for divorce, then the court will open up a non-dissolution case. The court will assign the case a FD docket number. In divorce cases the court will assign the case a FM docket number. A FD case basically means either that the parties are not filing for divorce yet. Alternatively, it may mean that the parties were never married.
In a FD case, once the application for child support is made, then the case will be scheduled to be heard before a Child Support Hearing Officer. A Child Support Hearing Officer is a trained lawyer who is appointed to assist judges to determine child support and insurance. After the Child Support Hearing Officer issues their award, the parties can either accept it, or request to see the judge to review it.
At the child support hearing both sides will present their pay stubs, W-2 info, tax returns, and health insurance info to the officer. The Child Support Hearing Officer will then review this info and enter pertinent data into a computer program that calculates child support. There after, the Child Support Hearing Officer will calculate a child support award, prepare worksheet, and present it to the parties.
The parties can then either accept the child support award, or request to have it reviewed by the Superior Court judge. If the case is appealed to the Superior Court judge, in most of the cases the court will affirm the findings of the Child Support Hearing Officer.
3. How is child support determined during a divorce case?
In a divorce case, an application for child support is almost always made during a preliminary hearing called a pendente lite application. Basically, the dependent spouse must file an application to the court that requests child support. These motions must be very detailed. These motions must include a completed CIS, the parties income info, a detailed description of the major family bills, and a completed child support guideline worksheet.
At the motion hearing, the judge will then enter the relevant income data into his computer program, and he/she will determine a child support award. The child support award and the employment date will then be given to the Probation Department. In most case a garnishment will start in about three weeks. The dependent spouse should start receiving checks in about 6 to 8 weeks. In the interim the payor spouse must make direct payments to the dependent spouse until the wage garnishment kicks in.
4. What are the criteria considered by the court to determine child support?
When a court makes a child support award, the court must consider the following factors: (1) the needs of the child; (2) the standard of living and the economic circumstances of each parent; (3) the sources of income and assets of each parent; (4) the earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children (including the cost of providing child care and the length of time and cost of each parent to obtain training and experience for appropriate employment); (5) the need and capacity of the child for education (including higher education); (6) the age and health of the child and parents; (7) the income and earning capacity of the child; (8) prior support orders for other children; (9) the reasonable debts and liabilities of each parent and child; and (10) any other relevant facts.
5. What are the Child Support Guidelines?
A child support award allows the custodial parent to provide the child with all of the essentials, such as food, clothing, and shelter. In order to ensure that the courts issue consistent child support awards, the State has enacted the Child Support guidelines. These guidelines are a formula which guides the person with factors to consider in reaching a child support award. The guidelines are derived from the Consumer Expenditure Survey. The guidelines take income info from both parties, and this info is applied to a formula to calculate a child support award. The current guidelines also provide for a self-support reserve for the payor parent. Basically, this means that if a person is too poor, and they can’t even survive, then they don’t have to pay child support. The self-support reserve is 105% of the poverty guideline for one person.
6. What are the Child Support Guidelines worksheets?
When a court calculates child support they must use a Child Support Guideline worksheets. There are two types of worksheets. The sole parenting worksheet is used when any of the following occur: (1) there is no visitation from the other parent; (2) there is sporadic visitation from the other parent (which does not exceed 2 or more overnights per week); (3) there is more than one child and at list one child resides with each parent.
The shared parenting worksheet is used when the parties share more parenting time with the child. The non-custodial parent must have custody of the child for at least two or more overnights per week.
The courts use a computer program to calculate child support. In order to use the computer program the court must input the relevant income info into the program. There are two options on the computer program. The court can calculate child support either using the sole parenting worksheet or the shared parenting worksheet. The child support award will be higher if the court uses the sole parenting worksheet option. Alternatively, the child support award will be lower if the court uses the shared parenting worksheet option.
7. How does the Guidelines define gross income?
The Guidelines define gross income as any and all of the followings: compensation for services; income from a business minus any operating expenses; gains from property; interest and dividends; rents; bonuses and royalties; alimony or maintenance payments received from the current or other relationships; annuities; life insurance contracts; payments from retirement plans; awards from personal injury or civil suits income from a trust disability payments, profit sharing plans; worker’s compensation; unemployment benefits; overtime, part-time and severance pay; net gambling winnings; earnings from investments; tax credits or rebates; unreported cash payments; and imputed income.
8. How does a court arrive at the parent’s net taxable income to calculate a child support award?
To arrive at a parent’s net taxable income, the parent’s withholding tax, prior child support orders, mandatory union dues and other dependent deductions are subtracted from the adjusted gross income. If there is non-taxable income, it is then added to the net taxable income to arrive at the parent’s net income. Each parent’s net income is then divided by the combined net income to determine their percentage share of income. The parents are then required to pay their percentage share of the weekly child support obligation.
9. Can the court also award additional expenses with respect to the parties’ basic child support obligations?
In addition to calculating a straight child support award, the court may also award additional expenses with regard to the parties’ basic child support obligations. The most common expenses that are awarded are day care and health insurance expenses. The expenses for day care and health insurance can easily inflate a child support award to approach the size of a mortgage payment.
If the parties have some dough, then the courts will also require the father/payor to pay for a share of any summer camp, and for the children’s extracurricular activities. The courts will also require the payor to pay for a share of the sports related activities, dance classes, music lessons, etc. If the parties have limited economic resources, then a court most often will hold that the expenses for these activities are part of the child support award. If the parties have money, then in most cases the court will make the payor front these expenses. The lesson to be learned is that getting divorced is not cheap.
10. Can child support be modified?
When sufficient circumstances are present, a child support obligation can be modified. New Jersey law requires that the person who seeks to modify a support award must prove that there has been a “change in circumstances.” The phrase “change of circumstances” is a very broad legal term of art. There are literally hundreds of cases that discuss what is a “change of circumstances.” Either party can file a motion for an increase/decrease in child support with the clerk. The parties must submit a completed CIS, income info, and the normal motion package.
In my experience, it is very difficult for a father/payor to have his child support lowered on the grounds that he lost his job or received a decrease in pay. In most of these cases the court will temporarily reduce child support, and give the father time to find better paying employment. Motions to reduce child support are usually only granted if the father can prove that he has health problems that limit his earning abilities. The courts may also lower child support if the father has additional children after the divorce. However, some courts will hold that the father is underemployed, and he should work additional jobs to pay for both families.
11. Are child support awards increased for a Cost of Living Adjustment?
All child support orders are adjusted every two years to reflect any increase in the cost of living. The cost of living adjustment will be based on the average change in the Consumer Price Index (CPI) for New Jersey. The most current CPI figures can be obtained from the US Department of Labor, Bureau of Vital Statistics, or from the New Jersey Law Journal.
12. What if a person loses their job, or if the amount of their pay is reduced, does this guarantee that child support will be reduced?
A decrease in available income is not a guarantee that the support obligation will be decreased. In order to justify a downward modification of child support, the decrease in income must be permanent in nature. The support payor must be able to prove that after numerous attempts, that he could not find a decent paying job. The payor spouse will have to create a paper trail to prove to the court that he has been diligently seeking employment. Copies of e-mails, and correspondences to prospective employers, must be attached to any application to any motions to reduce child support. Moreover, in order to obtain a child support reduction, a support payor must be able to prove that the decrease in income was involuntary. A father cannot voluntarily remain under employed. Additionally, a parent cannot voluntarily retire or take a much lower job than he is qualified for in order to purposefully avoid paying for child support.
13. Can the court impute income to a person if he is purposefully unemployed or underemployed?
If the court believes that a father is purposefully unemployed or underemployed, then the court will impute income to the party. Imputed income is what the court estimates what the “deadbeat dad” should be earning. The Child Support Guidelines require that the court to impute income based on the person’s potential employment, earning capacity, work history, job qualification, educational background, and regional opportunities.
The court imputes income based on the parent’s former job and as reported by the New Jersey Division of Labor. The Division of Labor publishes a book every year called the New Jersey Occupational Wages Survey. This book has an average income of every job and profession in every county in New Jersey. In summary, there is no escape to pay for child support. If a man just does not feel like working, then a judge will just look into the New Jersey Occupational Wages Survey and find the average salary that the person should make. This book is also used to ascertain income for the classic self-employed person who always hides or under reports his income.
14. When does child support terminate?
A child support order will terminate once the child becomes emancipated. Emancipation basically means that the child can take care of themselves. Because self-reliance can occur at any age and under any given set of facts, there is no set age when a child will be determined to be emancipated. Many people erroneously believe that once the child turns 18 then their child support ends. This is not the case in New Jersey. The State of New Jersey has some of the strictest child support laws in the United States.
In most property settlement agreements the parties will delineate as to what events or circumstances will define an emancipation. When an agreement does not exist the courts generally will presume that a child becomes emancipated at the age of 18. The Child Support Guidelines do not apply to a child who is 18 years or older and no longer in high school or any other secondary educational institution. A child often will be declared emancipated when the child marries or if the child has his or her own child. Additionally, a child may be declared emancipated if he or she enters into the military.
15. Does a person have to pay for the college costs for their child?
The courts have viewed education as an absolute necessity. The recent trend in New Jersey has been to require parents to pay for the college costs for their children. Therefore, if the child is attending college, then it is very unlikely that a court will grant an emancipation motion.
When a court makes a decision as to whether or not to require a parent to pay for a child’s college education and related expenses, the court must consider the complete set of facts of each case. The court will analyze the following factors to assess if a parent should pay for a child’s college costs; (1) the effect of the background, values, and goals of the parent on the reasonableness of the expectation of the child for higher education; (2) the amount of contribution sought by the child for the cost of the higher education; (3) the ability of the parent to pay that cost; (4) the relationship of the requested contribution to the kind of school or course of study sought by the child; (5) the financial resources of both parties; (6) the commitment to and aptitude of the child for the requested education; (7) the financial resources of the child, including assets held individually or in custodianship or trust; (8) the ability of the child to earn income during the school year or on vacation; (9) the availability of financial aid in the form of college grants; (10) the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; (11) the relationship of education requested to any prior training and to the overall long range goals of the child. The decision on whether or not a parent should pay for the college costs rests in the court’s hand. However, there is a strong trend towards requiring parents, if they are financial capable, to pay for the college. In most cases, the courts will not require the payor to pay for college and for child support at the same time. However, once again the key issue is how much money the payor who is usually the father has.
16. How can a person emancipate a child and stop paying child support?
Child support does not end automatically once the child turns 18. A person who pays child support must file an application with the court clerk and it is known as a motion to request that the child be declared emancipated. The child support obligation will only end once a family court judge enters an order that declares the child emancipated. The order of emancipation is then given to Probation, and the garnishment of the payor’s pay check will then be stopped.
This entire emancipation process takes about 3 to 4 months. Therefore, the emancipation application should be made in advance of the child’s graduation from high school or of their 18 th birthday. In some counties, the judge will rule on the emancipation application only on the papers, and a court appearance will not be necessary. However, in some counties a hearing is set down, regardless whether the opposing party files an objection.
In summary, it is extremely important to always timely file for emancipation. A person should not take it for granted that child support automatically ends once the child turns 18. I have had many cases when child support arrears accrue into the tens of thousands of dollars, even after the child is well over 18 years of age. The parent can avoid this problem if he files a timely emancipation motion. The child support arrears continue to accrue up until the child reaches the age of 26. If a person just ignores filing for emancipation, then eventually they will get a bill from Probation advising him that he owes tens of thousands of dollars in back child support. Furthermore, Probation will advise him that his driver’s license is also indefinitely suspended.
17. How is child support enforced if one parent does not pay?
In many cases the parent does not pay their child support obligations. There is no shortage of “dead beat dads” and “deadbeat moms” in New Jersey. When a parent fails to pay child support child support and the money becomes past due, the amount is called an arrearage. There are two types of arrears: fixed arrears and unfixed arrears. Fixed arrears are amounts which a court has found to be due and owing. Unfixed arrears are amounts which the support payor owes, but which have not been addressed by the court. An enforcement application is an attempt to get the courts to address the arrears and require the owing parent to pay.
A party or an attorney may file an application for enforcement. Additionally, when the child support is being collected by the local Probation Department, the Probation Officer that supervises the case may also file an enforcement application. If a party fails to make their child support payments, the Probation Department will notify the payor that his continued failure to pay will result in contempt proceedings. Thereafter, once the supporter payor falls behind more that 14 days in payments, then the Probation Department will file a statement with the court, and set forth the facts regarding the non-payment. Following that step, the Probation Department may then apply to the court for relief on behalf of the party who is opposed to receive support.
In a divorce case, if a party is not paying child support, then an enforcement motion is filed by the supported spouse. Probation will not get involved in enforcement motions of child support if the case is still in divorce proceedings.
18. How is child support collected?
In most of the cases, all child support is collected by wage garnishment through Probation. Most child support orders provide for income withholding or wage execution. It is not advisable that child support be collected by a direct pay. This can lead to unending accounting issues and collection issues.
An order for withholding will require an employer to deduct the child support payment directly from the employee’s pay checks. The employer then forwards the withheld amount to the Probation Department. Once the support is received and recorded, Probation then forwards the payment to the supported spouse. If the payor spouse also owes child support arrears, then the child support order may also require that these monies should also be garnished.
19. Can a person be arrested if a parent does not pay child support?
A court also has other more drastic methods to make a person pay child support. The court has the ability to suspend a person’s driver’s license or professional license if he/she refuses to pay child support. A court can suspend a person’s law license, medical license, or any other license. The threat of this type of this sanction can instill the fear of god into someone. In many cases, child support is paid up to date rather quickly once this threat is put in writing or in a motion. The court can also suspend a person’s passport if he refuses to pay child support. This can cause significant aggravation to a person if he frequently travels for business.
Additionally, if a person accrues child support arrears then this is reported to the three credit bureaus. A report of significant child support arrears can really nuke a person’s credit score. Moreover, child support arrears also constitute a lien on a person’s real estate. In short, a person can’t refinance their home if he has child support arrears.
If all of the above sanctions do not work, then the court will issue a bench warrant for the “deadbeat dad.” The Sheriff will then go out and arrest the “deadbeat dad” at his home or at his place of employment. Once the warrant has been issued, then if the “deadbeat dad” is stopped for a traffic ticket, then the local police officer will arrest and incarcerate him on the bench warrant.
The “deadbeat dad” will then be taken to the County Jail. The court will set a purge amount. A purge amount is the amount of the child support arrears that the “deadbeat dad” must pay in order to be released from jail. The “deadbeat dad” will eventually be taken before the court for a “purge hearing.” The court will not permit the defendant to be released until some of the child support arrears can be paid. Moreover, the defendant must also propose a reasonable payment plan for the arrears.
20. What is the Uniform Interstate Family Support Act?
A very important issue in child support is whether a New Jersey support award can be enforced in other states. Alternatively, can an out of state child support award be enforced in New Jersey. To address these interstate child support issues, the United States Commission on Interstate Child support, has created a federal law called Uniform Interstate Family Support Act (UIFSA).
Each state has their own set of child support guidelines. New Jersey has some of the strictest and highest child support awards in the United States. Therefore, in many cases where a person moves to another state, he may try to have a child support award established anywhere but New Jersey. The child support awards are much lower in the southern states and in Florida than they are in New Jersey. The child support awards are higher in New York than in New Jersey.
The UIFSA is very complex. The parties can generally litigate for years and battle over which state has jurisdiction to establish child support. This can be a very important issue. If a person lives in the south, and if they have to pay a New Jersey child support award, this can be quite a hardship. The wages and salaries are generally lower outside of the tri-state area. Therefore, many people will try to have a child support award calculated in their home state.
In general the state where the child lives has controlling jurisdiction over the case. It can be very difficult to enforce a child support order if a person moves out of New Jersey. The sister state will enforce the child support order. However, in many sister states they are very slow in their efforts to use their police powers to enforce the New Jersey child support order.
It is common knowledge that many “deadbeat dads” deliberately move out of New Jersey to try to avoid child support. With the advent of computers, it is now almost impossible for a “deadbeat dad” to hide forever. However, the sister state may not be as aggressive or efficient as New Jersey is in enforcing the collection of child support.
21. After I was divorced, I went back to school to get my college degree. Unfortunately, I know have $50,000 in student loans. Can the court take into consideration my massive student loan debt when it considers my child support?
Yes, this specific issue was addressed in the case of Lozner v. Lozner, 388 N.J. Super. 471 (App. Div. 2006). The legal issue in this case was whether a party’s substantial student loan debt constitute a factor that requires the alteration of a guidelines-based child support award? The Appellate Division held that in some cases a party’s substantial student loan debt could be a factor in determining child support. More specifically, the Appellate Division held that significant student loan debt may be considered by the trial court in determining whether the alteration of a guidelines based child support award is warranted. In doing so, “the trial court should consider the effect on the family of any particular deduction†and may utilize the factors set forth in N.J.S.A. 2A:34-23(a). The court was cognizant of the fact that a credit should be given for substantial loan debt provided the party can show that they “reasonably and necessarily†acquired the loan for the educational purposes of improving their earning capacity.