Divorce FAQ's
1. My son just reached the age of 18. Does my child support payments now automatically end?
No they don’t. Emancipation only occurs when a child reaches 18 years and/or becomes financially independent. A child is not automatically emancipated at the age of 18. The courts determine emancipation on an individual basis. New Jersey has no fixed age or specific event when support automatically stops unless it is stated in the court order. In some cases, child support may continue beyond the age of 18 or high school graduation. To emancipate a child one of the parents must ask the court to end or change the support order, or both parents can agree and sign a request for case closure. The emancipation of a child does not automatically excuse the payment of arrears that have accumulated.
It should also be noted that most courts will not terminate child support if a child is enrolled in college. Once a child finishes college then most judges will only emancipate him or her once the summer is over. Most judges prefer to give the young college graduate at least a summer to seek permanent employment before he or she is “cut loose” in the real world.
2. When can I stop paying for child support?
A parent has a legal obligation to pay for child support until he or she is emancipated. As a general rule, parents are under no duty to support their child after the age of majority. The age of majority is 18 years of age. See, Johnson v. Bradbury, 233 N.J. Super. 120 (App. Div. 1989). It must be emphasized that child support does not automatically end once the child reaches 18 years of age. There is no fixed age in the law when a child becomes emancipated. Moreover, the family courts routinely continue child support until the child completes college. Therefore, it is not unusual for a parent to support a child through his or her 20’s in order for all avenues of higher education to be explored. There is no bright line rule as to what constitutes a child’s emancipation.
The termination of child support only can occur if there is a changed circumstance. A changed circumstance can be the child’s death, a termination of parental rights, (e.g. adoption, the child gets married, the child joins the armed forces, the child graduates from high school and does not want to attend college, or the child obtains full time employment.
3. What is the legal standard of law that a court uses to determine if a child is emancipated?
The emancipation of a child is reached when the fundamental dependent relationship between the parent and the child is concluded. The parent must relinquish the right to custody, and is relieved of the burden of support. Every case is always fact-sensitive and the essential inquiry is whether the child has moved beyond the sphere of influence and responsibility his or parents. Moreover, the child must obtain an independent status of her or her own. See, Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997), Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995).
Once a child reaches the age of 18 then this is prima facie proof of emancipation. However, reaching the age of 18 only establishes a prima facie, but not a conclusive proof of emancipation. If a child is attending college then in almost all of the cases, a court will not emancipate a child. The parent if is filing a motion for emancipation has the burden of proving it. Ribner v. Ribner, 290 N.J. 66 (App. Div. 1997).
The factors that determine whether a child has obtained an independent status is the following; a) the child’s needs; b) the child’s interests; c) the child’s independent resources; d) the family’s reasonable expectations; e) the parties’ financial ability; and f) any relevant factor.
4. What are some typical events that trigger an emancipation?
It has been held that a child’s enrollment as a cadet at West Point is an emancipation event. Upon enrollment the child is deemed to be on active duty in the military. Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995).
A child living apart from his or her parents while under the age of 18 does not in and of itself result in emancipation. See, Quinn v. Johnson, 247 N.J. Super. 572 (Ch. Div. 1991).
A child under the age of 18 and who gives birth to a child without getting marriage, and who continues to be supported by her parents, is not deemed to be emancipated. See, Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997).
A child’ disability may militate against emancipation. In the case of Kravant v. Kravant, 100 N.J. Super. 107 (App. Div. 1968), the court held that a 25-year-old adult child’s pre-existing mental illness precluded full emancipation.
5. How should my PSA address the issue of emancipation?
Most property settlement agreements (PSA) that are drafted always address address the issue of emancipation of any children born of the marriage. Basically, the term emancipation means what is the cut off date for a parent’s child support obligation. Moreover, most PSA’s should also address the issues of college contribution as well.
The State of New Jersey has the most liberal child support laws and college contribution laws in the United States. At least we lead the country in something. In New Jersey, there is no set age for emancipation. I have had one case wherein a Superior Court judge required the non-custodial father to still pay child support for a 23 year man to go to seminary school. Many people have this mistaken impression that that a child is automatically emancipated when he or she reaches the age of majority which is 18. However, in the Garden State very rarely is a child declared emancipated at the age of 18.
The Superior Court of New Jersey has consistently held in many decisions that a child only becomes emancipated when a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated.
Since the issue of whether a child is emancipated is always a fact sensitive one, it is essential that your PSA have in it a clear definition of what constitutes emancipation. Therefore, the clearer that your PSA, this will reduce any chance of further litigation on the question when child support obligations stop. Any decent PSA as a matter of course traditionally list the following as emancipation events:
a. Reaching the age of 18 years or the completion of post-secondary education (college), whichever occurs last.
b. Marriage of the child.
c. Permanent residence away from the parent’s residence, except that residence at boarding school, camp or college shall not be deemed a residence away from the parents.
d. Death of the child.
e. Entry of the child into the armed forces.
f. A child obtaining full time employment after attainment of the age of 18 years, except that a child engaging in full time employment during vacation or summer periods while attending high school, college or other post-secondary education on a full time basis, shall not be deemed full time employment.
6. My son recently took a “break” from attending college, and he is now working full time. My son insists that he is only on a temporary hiatus from college. If I file for his emancipation will I prevail at court?
Each emancipation case is reviewed on its individual facts and circumstances. In my experience most courts would emancipate the child. However, many judges would insert language in the emancipation order that specifies that if the child re-enrolls in college that the child support could be reinstated. Illustrative is the case of Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999). Here, the court denied a motion to emancipated a child who was working full time while on a temporary hiatus from college. The appellate court agreed that a brief hiatus between high school and college is common place. Moreover the court held that a child’s rights to parent contribution to college should not be summarily denied.
In summary a short gap in college education does not lead to automatic emancipation. Another illustrative case is Conway v. Conway, A-0075-05T1 (App. Div. Aug. 23, 2006). In the Conway case has many issues. Here, the parties’ a child was declared emancipated even though there was no motion to emancipate, child support was reduced without any consideration of underemployment, and the father did not want to pay for any college contribution because he was not involved with the choice of college.
The parties were divorced in May 2004. At the time of the divorce the parties had one child named Jennifer and she was still unemancipated. In September of 2004 she went to Drexel university as a full-time college student after a one year gap. The defendant mother, filed a motion in June 2005 to enforce litigant’s rights as the plaintiff father had stopped paying her support after let go laid off from IBM. At the motion hearing in August 2005, the judge ordered that Jennifer was emancipated retro to January 2004. In January of 2005, Jennifer first stopped attending community college. However, neither party ever requested that their daughter Jennifer should be declared emancipated. Instead, the judge, sua sponte or on its own, emancipated Jennifer and determined that no child support did not have to be paid while she was at college. The wife then filed an appeal. The Appellate Division held this was a mistaken exercise of the court’s discretion and they reversed the emancipation order.
At the time of the divorce in May 2004 Jennifer was working on a part-time basis after she community college in January 2004. In the parties’ PSA it contained a provision that provided “in the event Jennifer returned to school on a full time basis, the college tuition would be borne in proportion to the parties respective incomes after utilization of any funds set aside for Jennifer.” The New Jersey family courts have consistently enforced; “Fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.” Smith v. Smith, 72 N.J. 350, 358 (1977). In the absence of changed circumstances, the family judge should have afforded deference to the parties agreement that they intended to support Jennifer if she ever went back to college. In summary, each emancipation case is fact sensitive. Here, Jennifer had a break at the time her parents were divorcing, and there was no evidence that she had become independent of her parents. The courts always give the benefit of the doubt to the child, and they are loathe declare a child emancipated.
7. My son has failed his senior year of high and he is a drug addict. He is now in a rehab program and trying to get his GED. I love my son, but I am sick of paying for child support. If I file for emancipation will the court grant my application?
Probably not. The courts are always very sympathetic to the child. Illustrative is the case of L.D. v. K.D. 315 N.J. Super. 71 (Ch. Div. 1998). Here, the father’s filed a motion to emancipate a nineteen-year-old child who failed his senior year of high school, and had a voluntary drug addition was denied. The child also enrolled in a rehab program, and he was working toward his GED. The court denied the emancipation motion and it held that child support must continue until the child is emancipated.
8. My PSA provided that my child support payments automatically end once my children reach the age of 18 years of age. Is this provision enforceable?
No. The right to receive child support belongs to the child and it cannot be waived, modified or negotiated away by the child’s parents. Illustrative is the case of Patetta v. Patetta, 358 N.J. 90 (App. Div. 2003). Here, the court held that a provision in the parties’ property settlement agreement that anticipated the emancipation of their child upon each child reaches the age of 18 was unenforceable. The court held that the right to child support could not be waived because this right belonged to the children.
9. What terms should my property settlement agreement have in it with regard to the definition of emancipation?
Since the issue of whether a child is emancipated is fact sensitive, it is essential that your PSA have a definition of emancipation so there is no question when child support obligations stop. A PSA traditionally lists the following as emancipation events:
a. Reaching the age of 18 years or the completion of post-‘secondary education (college), whichever occurs last.
b. Marriage of the child.
c. Permanent residence away from the parent’s residence, except that residence at boarding school, camp or college shall not be deemed a residence away from the parents.
d. Death of the child.
e. Entry of the child into the armed forces.
f. A child obtaining full time employment after attainment of the age of 18 years, except that a child engaging in full time employment during vacation or summer periods while attending high school, college or other post-‘secondary education on a full time basis, shall not be deemed full time employment.
10. Could you please give me an example of the type of emancipation clause that I should insert into my PSA?
A typical emancipation clause that I routinely insert into my typical PSA is as follows:
Emancipation Events. The parties obligations to pay all expenses associated with the support of the children shall be terminated, except as otherwise set forth in this Agreement, on the first to occur of the following events;
(1) the death of that parent;
(2) the death of the children;
(3) emancipation of the children. The term “emancipation” shall be defined for purposes of this agreement as follows;
(a) Reaching the age of eighteen (18) years, unless the children is enrolled full-time in a post-secondary institution, college, university or vocational school;
(b) Is employed full-time, except that full-time employment during the summers while the children are enrolled in a post-secondary institution during the school year shall not constitute an event of emancipation;
(c) The marriage of the children (even though such marriage may be void or voidable and despite any annulment thereof);
(d) Entry of the children into the military or any armed services of any country;
(e) Such other event as may be determined by law.
11. What is a survey of the recent New Jersey case law on the issue of emancipation?
a. Baldino v. Baldino, 241 N.J. Super. 414 (Ch. Div. 1990);(Child’s drug addiction did not constitute legally accepted handicap triggering continued support obligation after emancipation).
b. Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995) ;(Father’s support obligation terminated his 20-year-old son enrolled at United States Military Academy at West Point was declared emancipated).
c. Bowens v. Bowens, 286 N.J. Super. 70 (App. Div.1995); (Holding that an anti-retroactive child support modification statute did not bar the elimination of arrears accruing subsequent to the date of son’s emancipation).
d. Bundschuh v. Bundschuh, 2006 WL 2355081 (N.J. Super. Ct. App. Div. 2006) ;(Recognizing retroactive modification of support by declaring children emancipated, as of a date in the past, when they turned 18 and chose not to continue their education.
e. Conway v Conway, 2006 WL 2418839 (N.J. Super. Ct. 2006); (Here the court validated a settlement agreement that required the parties to pay tuition after the child took a hiatus from college).
f. Dolce v. Dolce, 383 N.J. Super. 11 (App. Div. 2006);(Here the court upheld a settlement agreement wherein the husband promised to pay child support until the son’s 23rd birthday or until he completed four years of college. This case recognized the validity of a consensual agreement past the age of majority and to set an emancipated date by the consent of the parties).
g. Fillipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997);(This case addressed the issue of emancipation if the child becomes pregnant).
h. Gac v. Gac, 186 N.J. Super. 535 (2006) (Here the court held that college contribution was not required where financial assistance was not requested until after the child graduated and the husband sought to terminate child support).
i. Newburgh v. Arrigo, 88 N.J. Super. (1982); (The decedent’s sons right to support for education expenses did not necessary terminate when he reached the age of 18. This case also set forth a list of the factors to be considered in a claim for college tuition contribution).
12. What happens if the provisions of a PSA conflict with the legal requirements for an emancipation?
This legal issue was addressed in the case of Tretola v. Tretola, 389 N.J. Super. 15 (App. Div. 2006). Here, the specific question was whether a trial court could require discovery and a plenary hearing regarding the emancipation of a child when the provisions of the Property Settlement Agreement entered into by the parents contains conflicting requirements for emancipation? The Appellate Division held that a plenary hearing was required because the trial judge failed to recognize the existence of a material factual dispute in adjudicating plaintiff’s request to emancipate his son without requiring further documentation and holding a plenary hearing. In the Tretola case presented, there were conflicting provisions for emancipation since the parties’ child was both enrolled full time in pursuit of his college degree while employed full time. The Property Settlement Agreement was not sufficiently clear regarding emancipation requirements to allow the trial judge to conclude that the child should be emancipated solely on the basis of the certification submitted. Thus, the Tretola court held that “The need for discovery and analysis of the evidence in a further proceeding is underscored in a case such as this where the parties’ PSA does not specifically address plaintiff’s monetary obligation under the circumstances where his son is both employed and attending college full time. ” Therefore, The family court judge was directed to schedule a plenary hearing to consider the child”s college plans, expenses, incomes, savings, contributions toward household and individual expenses, and to evaluate the financial status of the parties. The Tretola court further noted that in determining emancipation, the court must engage in a critical evaluation of the prevailing circumstances including the child’s need(s), interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.”
In summary the Tretola holding indicates that nothing is simple in the world of family court these days. Even a routine emancipation motion can become very convoluted. Many “gray” issues can arise in emancipation motions that can drag out the motion for many months. Is a child emancipated even if he only takes a few classes at Middlesex County College or at Brookdale? What if a child takes a few months off from college and then goes back, is he now un-emancipated? Is a child emancipated if he goes to graduate school? What about Gac estrangement issues? Get the point, filing a routing emancipation motion can become very complex. In the many emancipation motions that I have handled, it is amazing how many young adults suddenly enroll into the local county college once the emancipation motion is filed. The lesson to be learned is that you should never take it for granted that you will win your emancipation motion. The law of emancipation is very “grey” in the Garden State, and many family court judges are inclined to deny your emancipation motion unless you have an “air tight” case. If the opposing side provides the family court with a good faith reason to deny the emancipation motion, then odds are most family court judges will be inclined to deny the motion.
13. I have executed a PSA that specified that my son would be declared emancipated when he reached the age of 23. I had high hopes for my son, but now he is a “loafer” and he is not even attending a county college. Even though my son is only 19 years of age, can I still be successful if I file a motion for his emancipation?
You will probably not be successful in your emancipation motion if you should choose to file one. New Jersey has probably the most liberal child support laws in the United States. Some people would argue that New Jersey’s liberal child support laws are a sign of advanced jurisprudence. Meanwhile, many other legions of child support payors would argue otherwise, and they would contend that New Jersey’s child support laws are sheer lunacy. The above question was recently answered in the case of Dolce v. Dolce, 383 N.J. Super. 11 (App. Div. 2006) . The specific legal question in the Dolce case was whether a party can declare their child emancipated based at age 18, where the child is not attending school, despite a provision in the property settlement agreement setting emancipation at an older age? The Appellate Division held that there could be no finding of an emancipation.
More specifically the Dolce court held that the emancipation of a child is a fact-sensitive analysis that does not occur by operation of law. The emancipation of the parties’ child by the trial court because he was no longer in school and reached the age of 18 was contrary to the terms of the Final Judgment of Divorce which included an agreement that child support would continue, inter alia, until age 23. Reaching the age of 18 is only a threshold proof for emancipation that can be voluntarily extended by agreement. Because the husband was seeking to modify his child support obligation, the Court was required to be guided by the best interests of the children. Here, such an agreement existed and could not be dissolved without the requisite showing of a change in circumstances. Furthermore, the Court acknowledge that the parties agreement to extend the emancipation age of the child was a significant consideration in enforcing their agreement.
14. I entered into an consent agreement with my former wife to emancipate our daughter. Our daughter is a loafer and a druggie and we don’t want anything to do with her. Can my daughter file her own individual objection to my emancipation motion?
Yes, she certainly can. An illustrative case is Novy v. Novy, A-4207-07T2. Here, the the defendant/father appealed a family court’s decision not to emancipate his daughter. His daughter was goofing off, was a partier, and she was only attending Ocean County College on a sporadic basis. Therefore, the father filed a motion to emancipate his daughter. The former wife agreed to the emancipation. However, the daughter Rachel filed a motion to intervene, and she objected to the emancipation motion. Thereafter, the father filed an appeal of the denial of his application for the emancipation of Rachel.
On appeal, the defendant argued that the family erred by not emancipating his daughter, and requiring him to continue providing her with support. At the motion hearing, Rachel’s certifications conflicted with her parents. The two major fact issues were whether Rachel was attending college, and how many credits was she taking. The court denied the father’s motion, and he did not even grant him a plenary hearing. The Appellate Division reversed, and it send the case back down to the family court for a full plenary hearing.
In my opinion, this case is ridiculous. In many New Jersey families the issue of sending your kids to college can turn into a massive litigation. Maybe the courts should stress more family counseling, instead of just permitting the parties to engage in endless litigation. In closing, this case illustrates that the hot new trend is for the Appellate Division to remand appeals of family court motions for plenary hearings. Post-judgment motions often request some heavy reliefs such as college contribution, change of custody, alimony reduction, etc. The bottom line is that many family court judges don’t prefer to make decisions on these motions without having a hearing. My only concern is where is the court system going to get all of the necessary judges to hold all of these plenary hearings. In summary, if the Appellate Division is going to order so many plenary hearings, then the AOC should make sure that the County Court Houses have enough judges to conduct them all.
15. I am paying $200 per week in child support to my son who is now attending Middlesex County Community College. He is only getting C’s and D’s. I am sick of paying child support to my son who does not take life seriously. Can I file a motion to emancipate him based on the grounds that he is getting poor grades in college?
No, your motion will probably be denied. An illustrative case is Keno v. Pilgram, New Jersey Appellate Division, August 17, 2006. Here, the father filed a motion in the family court to emancipate his daughter based on her poor grades in college. She was 20 years of age. The family court judge granted the motion. The mother then appealed. The case was then reversed. The Appellate Division held that it was a reversible error emancipate the daughter based only on her poor grated. The court noted that the daughter was still under the sphere of influence of the parents. Moreover, the court noted that the family court judge failed to make adequate findings as to the reasons why he granted the emancipation. Thus, the case was reversed and the father still had to keep paying his child support.