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Winning an Emancipation Motion
(provided by Theodore Sliwinski, Esq.)

1.What is the burden of proof in an emancipation motion?

Motions for emancipation are filed every day in the family courts. In fact it is probably the most popular type of motion filed in the family court. In New Jersey there is no set age when a child will be declared emancipated. Each case is decided on its own merits. See, Newburgh v. Arrigo, 88 N.J. 529 (1982); Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997); N.J.S.A. 9:17B-3. Nonetheless, New Jersey law provides that a person is "deemed to be an adult" once he reaches the age of eighteen.

The moving party or the person who files the motion has the burden of proof. A moving party must establish a prima facie case of emancipation. This legal burden is satisfied once there is proof submitted that the child has reached the age of eighteen. Thereafter, the burden of proof then shifts to the responding party to demonstrate that there is a continuing need for child support. See, Rescinito v. Panetta, 2009 WL 2525373 at *2 (N.J. Super. A.D. Aug. 20, 2009).

The burden to prove that there is a continuing need for child support is automatically satisfied by showing that a child is still in high school, the child is now enrolled in college, the child has a medical condition that prevents him from being self-sufficient, or that the child has special needs. Upon the making such a demonstration, the burden of proof then shifts back to the moving party. Thereafter, the moving party must present a good case to the judge to explain why emancipation must be granted. Some typical factual disputes in motion hearings are; a) the child is not attending college; b) the child does not have special needs; and c) the child is working full time now and he no longer needs support.

If there is a material factual dispute in the motion papers then in many cases the court will set the case down for a plenary hearing. Plenary hearings are quite expensive and they are adjourned many times. Nothing is simple any more in the family court. It is not uncommon for a routine emancipation motion to require a plenary hearing. Plenary hearings are no fun at all and they typically cost each party several thousands of dollars in legal fees. However, many judges simply will not rule on an emancipation motion if there are material disputed facts. A very common disputed material factual issue is whether a child is attending community college. In the period before the motion is filed many grown up children don't attend community college. However, once the emancipation motion is filed, quite frequently the child zooms to the bursar's office at the community college and signs up. Thereafter, a hotly contested emancipation battle could ensue. Most judges will not decide an emancipation motion with this set of facts unless there is a plenary hearing held. Plenary hearings sound great in theory. However, the New Jersey court system is way understaffed. No matter how much the AOC tries to reform the family court system, nothing will work unless they hire more judges, clerks, probation officers, and parenting mediators. The family court system is swamped. The family court judges are top notch. However, they can only hear so many cases per day. They can't run two trials or plenary hearings at the same time. In closing don't take it for granted that you will have a "cake walk" if you file an emancipation motion. More often than not these motions are hotly litigated cases and they turn into plenary hearings.

2. Can child support arrears be reduced if I should win my emancipation motion?

Yes, however child support arrears can be reduced in some very limited circumstances. A major doctrine of family law is that child support arrears can't be retroactively reduced. Therefore, if you win an emancipation motion, and if you owe arrears, then there is one train of thought that holds that your arrears can't be reduced. However, this major doctrine is slowly being eroded. A reasonable argument can be made that the anti-retroactivity provisions of N.J.S.A. 2A:17.56-23(a) do not apply to all cases. There is some case law that supports the proposition that child support arrears can be reduced if they have been accrued after a judicial determination of emancipation. See, Mahoney v. Pennell, 285 N.J. Super. 638 (App. Div. 1995). Therefore, if the arrears accrue after a date when the court declares a child emancipated, then it can be argued that the anti-retroactivy provisions of N.J.S.A. 2A:17.56-23a do not automatically bar the reduction of child support arrears. See, Rescinito v. Panetta, 2009 WL 2525373 at *3 (N.J. Super. A.D. Aug. 20, 2009). Therefore, there is a another train of thought that holds that the correct date for retroactivity is not the date of filing of the motion but it is instead the date of emancipation.

There are many unpublished opinions of the New Jersey Appellate Division that hold that child support arrears can be reduced if they are accrued after the judicial determination of emancipation. Nonetheless, in my almost two decades of practice, I have never seen a judge order that a payee/dependent spouse was required to repay child support that she received after the child was declared emancipated. In the real world judges simply do not order payee/dependent spouses to repay child support. Therefore, the payor spouse can make an argument that he should receive a credit against any future payments that he has to make for child support for his other children, or for any college contribution payments/orders. See, Petruzzi v. Petruzzi, 2008 WL 3914874 (N.J. Super. A.D. Aug. 27, 2008). In summary in any motion to seek an emancipation you should always make an application to receive a credit if you have overpaid your child support. It is very unlikely that a judge will order the payee/dependent spouse to pay you back your overpaid child support payments. However, you may be able to receive a credit that you can apply toward your other family court obligations.

Information provided by:
Theodore Sliwinski, Esq. located at

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