Divorce FAQ's
1. What are the basic principles of New Jersey emancipation law?
Most people love their kids. However, in these hard times and given the high cost of living in the Garden State many people count down the days until they can stop paying child support. Child support usually ends when the child is emancipated. Emancipation is presumed to occur at age 18. The age of 18 is the age of majority in New Jersey. Once a child reaches the age of 18 there is a rebuttable presumption of emancipation. Emancipation can occur when a child gets marries, enlists in the military, by a consent order, or by the child reaching the age of majority. Emancipation is a fact sensitive issue, and whether a child is emancipated at the age 18 depends on the facts of each case. See, Newburgh v. Arrigo, 88 N.J. 529 (1982).
Thee different judges could decide the same exact emancipation motion in three different ways. If the emancipation motion has material or important disputed facts, then many judges will set the case down for a plenary hearing. Plenary hearings are expensive, time consuming, and they are adjourned many times. If a case is set down for a hearing then all avenues to settle the case should be explored. In summary, it is extremely important for you to prepare your legal papers in a thorough and professional manner. In today’s world there is often no such “animal” as a clear cut emancipation motion. In many disputed emancipation motions your son or daughter will immediately enroll into the local community college once mom receives the legal papers. In cases such as this the judge will set the case down for a plenary hearing. Plenary hearings are often very expensive and they often just cause more “bad blood” between the ex-spouses and the family.
2. Is a child automatically emancipated once he reaches the age of 18?
The emancipation of a child occurs when he is no longer dependent upon his parent for financial and other means support. Specifically, a child is deemed emancipated once he goes beyond the sphere of influence. This is an extremely vague legal term of art. However, the law of emancipation is extremely vague in New Jersey. While in most states the emancipation of a child occurs when a child reaches the age of 18, this is not the case in New Jersey. New Jersey has the most liberal emancipation laws in the United States. If a child continues his education at a university, college or trade school for instance, then the child’s emancipation date will not be until graduation. Therefore, both parents will have to still pay child support. Moreover, there are probably college contribution legal requirements as well.
Emancipation is simply not dependent upon the specific age of a child as it is in the majority of other states. Once a child reaches the age 18 this only establishes a prima facie case, and it is not a conclusive proof of emancipation. The demonstrable needs of the child, and not the child’s age, are the determining facts for the duty of child support. In summary there is no fixed age of emancipation and it is ordinarily a question of fact.
3. What is the essential inquiry to determine whether a child is emancipated?
The essential legal inquiry is whether the child has moved beyond the sphere of influence, the responsibility exercised by a parent, and if the child has obtained an independent status of his own. Determining the answer to this question can often be as difficult as finding Noah’s Ark or Big Foot. The determination of emancipation is a fact sensitive inquiry that involves the evaluation of the circumstances. These factors include the child’s needs, his interests and independent resources, the family’s expectations, and the parties’ financial ability.
4. When do legal issues of emancipation most often arise?
The legal issue as to a child’s emancipation most often arises when the child attends college. In these cases the family’s ability to pay, the family’s lifestyle, the parent’s educational background, and the child’s commitment to his education must be fully considered by the court. Each case must be analyzed on the basis of its own unique set of facts. Nonetheless, it is very possible that even though the child is not emancipated, there should be a reduction in the amount of child support. For example, if the child is living away from home at college, the primary residential parent’s expenses for the child are usually greatly reduced because the non-custodial is paying a portion of the child’s room and board at college. The non-custodial parent is contributing to the room and board by way of his contribution to the child’s college tuition and expenses. In the majority of these cases the court will reduce child support by approximately one half in an ordinary college contribution case.
5. If my child turns eighteen but he has not yet graduated from high school do I still have to pay child support?
An 18 year-old attending high school is not emancipated. Although he may vote and drive the financial dependent parent child relationship still exists. A high school senior still must eat three meals a day, he must borrow the family car, he needs money to pay for car insurance, and he needs an allowance. In summary, a high school senior is still dependent upon the family for support, and no judge in New Jersey would ever emancipate a high school senior.
6. Will I still have to pay child support if my son is still attending college?
In 99% of the cases a judge would never emancipate a child if he was still going to college. A college student is still financially dependent on his parents. New Jersey courts have consistently had some of the most liberal child support laws in the nation. Moreover, the New Jersey courts have consistently held that hat parents must continue to support a child who is enrolled in a full-time undergraduate program, whether living on campus or at home.
7. What if my child attends college on a part-time basis?
If your child is attending college on a part-time basis, and if he is also working then you may have a reasonable chance to have him declared emancipated. However, the odds are still stacked against you. The legal inquiry is very fact-sensitive, and the outcome would depend on the ability to pay of the non-custodial parent. If the payor has sufficient disposable income then the child won’t be declared emancipated. The court would also analyze how much income the child earns, what is the income of the mother, what is the tuition cost for the college or county college, and how many credits is the child taking.
8. What if my child dropped out of college but wants to re-enroll?
In many cases a child enrolls in college once he graduates high school. Thereafter, the child then takes a hiatus from his college studies after several semesters. He may be able to return to college and regain unemancipated status. The court would focus any legal inquiry include the length of and the reasons for the hiatus.
9. What if my child finishes college and then attends graduate school?
In most cases a child is declared emancipated once he graduates from college or trade school. However in some cases parents are legally required to continue to for pay child support if their son or daughter enrolls into graduate or professional school. Once again each case is fact sensitive. However, if you are a payor and if have disposable income, then in the majority of cases the courts will require you to pay child support if your child attends graduate school, law school, or medical school.
10. Will my son be declared emancipated if he joins the U.S. Army?
A child who enters the armed forces is deemed emancipated because the United States government has essentially assumed the role of a parent. A minor who enlists in the armed forces places himself under the control of the government, which is inconsistent with parental control and support. Therefore, the child is deemed emancipated. The leading case is Bishop v. Bishop, 287 N.J. Super. 593 (App. Div. 1988). Here, the court held that a child who became a West Point cadet was thereby emancipated, since being a cadet constituted active military service.
11. Will my daughter be declared emancipated if she gets marries?
Yes, a child who gets married is deemed emancipated. The marriage of a child results in the emancipation of the child. Parents are not ordinarily under a legal duty to support their children after they have gotten married.
12. Can my child be emancipated if he has reached the the age of majority and he is not attending college, but he has a severe disability?
Probably not. In most cases a parent has a legal obligation to pay child support for a child who has who has a physical or mental condition or disability. Some typical examples are that the child has a learning disability, severe depression, emotional problems that may render that child unable to provide for himself. Believe it or not there are cases wherein a child may never be declared emancipated. If a child is mentally or physically retarded or if has to go live at a group home, then there is a strong possibility that you will have to pay child support forever.
An illustrative case is Monmouth County Division of Social Services v. C.R., 316 N.J. Super. 600 (Ch. Div. 1998). Here, the biological parents of a severely handicapped child, and they turned the child over to the state for placement at the age of 14. Thereafter, they made an outrageous application for retroactive reimbursement of the support monies that had voluntarily paid for a three year after the child turned 18. The court found that the child was not emancipated. It noted that many exceptions have been developed to the general rule that parents are not under a duty to support child have the age of majority is reached. The court further held that emancipation is a fact sensitive event, and that there are major exceptions to the rules regarding emancipation.
Moreover, on August 5, 2005, N.J.S.A. 2A 34-23 and N.J.S.A. 9:17-53(e) was revised to provide that the child support obligation for a child not emancipated by the court, shall not be terminated solely on the basis of the child age, or if the child suffers from a severe mental or physical incapacity that causes the child to be financially dependent on a parent. The obligation for child support continues until the court finds that the child is relieved of the incapacity or is not longer financially depended on the parent. In assessing the financial obligation of the parent, the court shall consider, in addition to the factors enumerated in his section, the child’s eligibly for public benefits and services for people with disability and may make such orders include an order for the creation of a trust, as are necessary to promote the well being of the child.
13. Can my child be declared emancipated because he is not attending college because of a drug abuse problem?
This is a very fact sensitive issue and there is no clear cut answer. A child with a drug abuse problem may or may not be entitled to still receive child support from his parents. A distinction must be made between the different type of drug problems out there in the world. If your son is a 18 year kid who has recently dropped out of high school, and if he still needs child support to help him get his life back on track, then most courts would deny your motion to emancipate your son. Meanwhile, if your son is a 21-year old college student who has been and out rehab, and has dropped out of numerous colleges, then you will probably win your emancipation motion. However, keep in mind, then your son and ex-spouse can always apply for additional child support, and college contribution if your son gets his act together and gets clean and goes back to school.
There is a split of legal authority on this legal issue. In the case cases L.D. v. K.D, 315 N.J. Super. 71 (Ch. Div. 1998), the trial court denied an emancipation motion filed by the father for a 19-year child who became addicted to heroin, failed her senior year in high school, was in a residential drug rehab program, which facilitated her earning a GED. The court held that she was not emancipated because the child continued to be financially depended on her parents. In contrast, in the case of Baldino v. Baldino, 241 N.J. Super. 414 (Ch. Div. 1990), the court held that a child of divorce parents who was voluntary drug addicted and had been out of school for two years was emancipated.
14. My young daughter recently gave birth to a child. Is she now emancipated?
Probably not. If the child continues to live with the custodial parent, and if she still continues to depend on support that she receives from her parents, then most courts would not emancipate a child merely because she got pregnant. The leading case on this issue is Fillipone v. Lee, 304 N.J. Super. 4301 (App. Div. 1997). Here, the court held that a young teenager who had a child was still not emancipated because she was financially dependent upon her parents. The young teenage girl still lived at home, she was attending high school, and she still needed to be financially supported.
15. My son is graduating from high school this June, and he does not plan to enroll into college. Can I immediately file my emancipation motion now in the month of December?
No, it is important to emphasize that your emancipation motion must be ripe to file and ready to be ruled on by the court. Even though your son does not plan to go to college now, he could change his mind in a few months. Moreover, you could have a change of heart if you wait a few months longer and file the motion in April. I am certain that you would want your son to have a college education and to be successful. Nonetheless, if you want to file the motion you should not file it after his graduation. Instead, you should try to file the motion within a few weeks before his high school graduation.
16. My son has graduated from college, and both my wife and myself fully agree that child support should end. Do I still have to file an emancipation motion?
A consent order could be submitted in lieu of filing an emancipation motion. Filing motions can be very expensive and time consuming. If the parties agree, they can submit a consent order to the court to emancipate their child. This could save the family thousands of dollars in legal fees.