Divorce FAQ's
1. How can I request the family court to determine, increase, or reduce a child support award?
If you want the family court to legally require your ex-partner or spouse to pay child support, then you are required to file a motion with your county family court. Filing a motion can be a very confusing experience for a common person. The basic documents of a motion include a notice of motion, a certification, and a proposed form of order. Moreover, any motion should also include copies of your last three pay stubs, your recent tax return, and your W-2. These documents should be attached to your certification.
You will also need to have a docket number before you can file for support. Child support is determined in a FM or a FD docket. A FM docket is for a divorce case. Meanwhile, a FD docket is used to determine child support for unmarried people. A docket number is used by the court to keep track of your case.
You will also have to fill out a form called a CIS. (Case Information Statement) This form will make your head spin. However, it must be filed with your motion. Finally, you will also be required to pay a $30 filing fee.
Meanwhile, if you are not married, or if you are separated, and if you need child support but you don’t want to file for a divorce, then you will only receive a FD docket. There is no filing fee to file a motion to request child support in a FD case.
2. Who will determine what is the amount child support?
The New Jersey courts are swamped and this is an understatement. Therefore, the New Jersey judiciary has created a Child Support Hearing Officer Program. If you file a FD case to request a determination of child support, then your case will be heard by a child support hearing officer. Most child support hearing officers know the child support laws inside and out. All they do is conduct child support hearings morning, noon and night. They know the nooks and crannies of every little intricacy of the child support laws.
Meanwhile, most family court judges routinely are fully versed with the New Jersey child support laws. However, family court judges also deal with domestic violence cases, custody cases, DYFS cases, parental termination cases, etc. Moreover, many family court judges are new to the area of family law. Many judges were former prosecutors and they may not have not had much experience with family law. Many child support hearing officers have been determining child support for decades. In my experience the child support hearing officers are real pros and they understand the child support laws just as well if not better than the judges.
If you file for a divorce then the judge will determine the amount of child support. If you don’t accept a child support calculation made by a child support hearing officer, then you have a right to appeal the case to a family court judge. In the majority of the cases the judge will uphold the decision of the child support hearing officer. However, you have nothing to lose by appeal accept you could waste your entire day waiting in court.
3. How is child support calculated?
There is an exact science to determining a child support award. The court system uses a computer program to determine child support. Moreover, lawyers use two major child support computer programs to determine child support. The two major companies that sell New Jersey child support calculation software are Easy Soft and Family Soft. Child support is determined by using the child support guidelines. These guidelines are simply estimates of what parents in intact families spend on their children. The incomes of both parties are used to determine the child support award. The court inputs the parties’ weekly gross income into the computer program. However, the child support award is based on the parties’ combined net income. The court determines net income by subtracting, gross income minus income taxes, mandatory union dues, mandatory retirement, and previously ordered child support payments. The court then uses worksheets to enter the necessary data to calculate a child support award. Thereafter, the court will generate a child support award.
4. What type of income information and I required to give to the child support hearing officer or to the judge?
You will be required to provide the court with your last three pay stubs, your W-2, and your most recent tax return. Moreover, you will have to provide any proof of health insurance coverage for the child.
5. Do the child support guidelines apply to every case?
The child support guidelines are applicable for parties with a joint net income that range from $170 per week to $2,900 per week. Additionally, the child support guidelines only apply to families who have up to six children. Moreover, the child support guidelines don’t apply to the very rich. If the combined net income of the parents is more than $187,200 per year, then the court shall apply the guidelines up to $187,200 Thus, child support guidelines only apply for families with net incomes of more than $187,200 per year. For the cases that fall outside of the guidelines, the judge will have to establish the child support award.
There are many situations when it can be argued to the court that the child support guidelines should not apply. In many divorced families it is common for the divorced spouses to split custody of the children, one child could live with mom, and one child could live with dad. In cases such as this, a bonafide argument can be made that the child support guidelines should not apply.
The New Jersey child support guidelines do provide that if there is “good cause then the child guidelines do not apply. These guidelines provide in pertinent part:
RULE 5:6A CHILD SUPPORT GUIDELINES
The guidelines set forth in Appendix IX of these rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that an injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.
The “million dollar” question is what constitutes “good cause” to justify disregarding the guidelines. Each case turns on its own individual merits. There are many unique cases that are filed in the family courts. There are many situations when a person can legitimately argue that the child support guidelines should not apply to his case. It does not hurt to be creative when you are in court. If you truly have a truly unique case, and if the application of the guidelines would create an unfair and unjust result, then you should argue that the guidelines should not be used in your case. If the court finds that the guidelines should not be used, then it could either disregard the guidelines, or adjust the child support award to accommodate the needs of the children or of the parents’ circumstances.
6. Are internet child support calculators reliable?
A common misconception is that internet child support calculators are reliable. This is simply not true. Lawyers spend big bucks on computer programs to determine child support. Moreover, these programs are constantly updated. An internet program may give you a rough idea as to what your child support would be. However, they are generally inaccurate and misleading.
7. What range of expenses does child support cover?
A child support award only includes covering the basic expenses that are associated with raising a child. These expenses include the child’s share of expenses for housing, food, clothing, transportation, entertainment, and unreimbursed health care up to $250 per child per year. Any other expenses such as child care expenses, health insurance for the child, predictable and recurring health care expenses in excess of $250 per child per year, special needs of gifted or disabled children, private elementary or secondary education, and visitation transportation expenses are added to a basic child support award. If you are requesting that the court award you additional support for these “extras” then you will have to document these expenses with hard documented proof. The court will not simply take your word that these extra expenses are legitimate.
8. Can I avoid paying child support by quitting my job, getting fired, or by working “under the table?”
Many men simply hate paying for child support. Therefore, many devious men think that they can beat the system and avoid paying child support by quitting their job, by getting fired, or by working off the books. The courts quickly catch onto these schemes. So don’t try them!
The New Jersey courts simply will not permit a parent to beat the system, and not pay for child support by manipulating his income. Nonetheless, the courts can’t force someone to work if they are too lazy. However, the courts can impute income to a lazy person. The courts have developed a concept called the imputation of income. A court will impute income to either parent when that person is not making the amount of income that he could be making. The court will use a book prepared by the New Jersey Department of Labor and Workforce Development called the Occupational Employment Statistics Wage Survey. This book will provide the average wage in every field of work in New Jersey. The wage survey is also broken down by each county. Therefore, if a devious plumber quits his job, and if he claims that he is broke to the judge, then the court will refer to the wage survey for guidance. The court will then determine in which county the plumber lives in. Thereafter, the court will refer to the wage survey and ascertain what is the average wage for a plumber in the county where the unemployed plumber now lives.
9. What is my recourse if I believe that the child support award was erroneously calculated and is unfair?
If you believe that the child support hearing officer or the judge erroneously calculated your child support award then you always have a right to appeal. If a hearing officer established a child support award then you have a right to appeal it to the family court judge. You are not required to file a written appeal to the judge. In the majority of the cases your appeal of the child support hearing officer’s decision will be heard on the same day. Meanwhile, if you want to appeal a child support determination made by a family court judge then you must file an appeal with the Appellate Division. If a judge sets a child support award, then you have 45 days to file an appeal with the Appellate Division. An appeal is very complicated and it costs big bucks.
10. When can child support be reduced?
A child support award can be only reduced based upon changed circumstances at any time. This must include a significant change in either parties’ income. In order to reduce child support the court must find that the circumstances of the parties have changed since the date that the order was entered (See, Lepis v. Lepis, 83 N.J. 139 (1980). To qualify for a modification/reduction, a person must file a motion with the court and show a change in circumstances, as specified in Lepis v. Lepis, and other relevant case law. See also, N.J.S.A. 2A:17-56.9a, Doring v. Doring, 285 N.J. Super 369 (Ch. Div. 1995) and R. 5:6B.
11. When will child support ever end?
There is no automatic end date to child support. A person must file a motion to request that his child be declared emancipated. The law on emancipation in New Jersey is very amorphous. Each emancipation motion is decided on a case by case basis, and it is fact sensitive. There is no automatic date when child support is terminated. Therefore, child support will just go on and on just like the energizer bunny. Thus, the critical question is when does emancipation occur. The answer to this question is almost never clear cut. The key factors are whether the child is working or going to college. Generally, a child will not be declared emancipated if he is attending college. Nonetheless, the issue of emancipation is very complicated, and it depends on the facts of your own individual case.
12. What other factors can the court use to deviate or disregard the child support guidelines?
The child support guidelines are quite comprehensive. However, they still can’t adequately address every person’s unique life or circumstances. Therefore, the child support guidelines give the judge the authority to “junk” them and make his own calculation.
At the court’s discretion, the following factors can be used to analyze whether there should be a deviation from the child support guidelines;
a. equitable distribution of property;
b. income taxes;
c. fixed direct payments (e.g., mortgage payments);
d. unreimbursed medical/dental expenses for either parent;
e. educational expenses for children (i.e., for private, parochial, or trade schools, or other secondary schools, or post-secondary education);
f. educational expenses for either parent to improve earning capacity;
g. single family units (i.e., one household) having more than six children;
h. cases involving the voluntary placement of children in foster care;
i. special needs of gifted or disabled children;
j. ages of the children;
k. hidden costs of caring for children such as reduced income, decreased career opportunities, loss of time to shop economically, or loss of savings;
l. extraordinarily high income of a child (e.g., actors, trusts);
m. substantiated financial obligations for elder care that existed before the filing of the support action;
n. the tax advantages of paying for a child’s health insurance; and
o. one obligor owing support to more than one family (e.g. multiple prior support orders.
In summary, the court may consider other factors that could justify a deviation from the child support guidelines. In all cases, the decision to deviate from the guidelines is based on the best interests of the child. Any deviation from a guidelines-based award and the amount of the guidelines-based award must be stated in writing in the support order or on the guidelines worksheet.
13. What other expenses can be added to the child support amount?
There are some child-related expenses represent that are quite large and it is not appropriate to include them in the basic child support awards. Therefore, these expenses should be added to the basic child support award. The items listed below are not included in the Appendix IX-F child support awards. If these expenses are incurred in a case, then these expenses should be added to the basic support award.
a. Child-Care Expenses – The average cost of child care, including day camp in lieu of child care, is not factored into in the child support guidelines. The net cost (after tax credits) of work-related child care should be added to the basic child support award if incurred.
b. Health Insurance for the Child – The parent’s marginal cost of adding a child to a health insurance premium is not included in the support schedules and should be added to the basic obligation if incurred.
c. Predictable and Recurring Unreimbursed Health Care Expenses In Excess of $250 Per Child Per Year – Any unreimbursed health-care expenses for a child in excess of $250 per child per year are not included in the guidelines. These expenses should be added to the basic child support award if they are predictable and recurring. Any health-care expenses for a child that exceed $250 per child per year that is not predictable and recurring should also be shared by the parents in proportion to their relative incomes as incurred.
d. Other Expenses Approved by the Court – These are predictable and recurring expenses for children. These expenses include camp costs, private school tuition, expenses for the special needs of a gifted or disabled child(ren), and visitation transportation expenses. The addition of these expenses to the basic child support award must be approved by the court.