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Hot Tips on Emancipation
What are the basics of New Jersey emancipation law?
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 maturity 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, by a consent order, or by the child reaching the age of majority. The age of majority in New Jersey is 18 years. 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).
Is a child automatically emancipated once he reaches the age of 18?
Emancipation of a child occurs when a child is no longer dependent upon their parent for financial and other support. Specifically, it is when a child goes beyond the sphere of influence. 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. If a child continues his or her education at a university, college or trade school for instance, then the childīs 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 states. Once a child reaches the age 18 this only establishes a prima facie and 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.
What is the essential inquiry to determine whether a child is emancipated?
The essential inquiry is whether the child has moved beyond the sphere of influence and responsibility exercised by a parent and has obtained an independent status of his or her 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 including the child's needs, interest and independent resources, the family's expectations and the parties' financial ability.
When do legal issues of emancipation most often arise?
The legal issue as to a child's emancipation most often arises when the child goes to college. In these cases the family's ability to pay, the family's lifestyle, the parents' educational background and the child's commitment to their education must be fully considered. Each case must be analyzed on the basis of its own unique 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 half in a typical college contribution case.
If my child turns eighteen but he has not yet graduated from high school do I still have to pay child support?
An eighteen-year-old attending high school is not emancipated. Although he may vote and drive the 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 on the family for support, and no judge in New Jersey would ever emancipate a high school senior.
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.
What if my child attends college on a part-time basis?
If your child is attending college on part-time and if he is also working then you may have a reasonable chance for him to be declared emancipated. However, the odds are 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 will not 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.
What if my child dropped out of college but wants to re-enroll?
In many cases a child enrolls in college once graduating from graduating from 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 reason for the hiatus.
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.
Will my son be declared emancipated if he joins the US 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.
Will my daughter be declared emancipated if she gets married?
Yes, a child who marries 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.
Can my child be emancipated if he has reached the age of majority and 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 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, who had turned the child over to the state for placement at age of 14. 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.
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 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 recently dropped out of high school, and if he still need child support to get his life back on track, then most courts would deny your motion to emancipate your son. Whereas, 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.
My young daughter recently had a child. Is she now emancipated?
Probably not. If the child continues to live with the custodial parent, and still continues to depend on support from her parents, then most courts would not emancipate a child merely because she got pregnant. The leading case 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 depended upon her parents. The young teenage girl still lived at home, she was attending high school, and she still needed to be financially supported.
My son is graduating from high school this June and he does not plan to go to college. Can I file the 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 file the motion in April. I am certain that you want your son to have an 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 or after high school graduation.
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 or a motion made to the court. 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.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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