(provided by Theodore Sliwinski, Esq.)
1. My son just reached the age of 18. Do my child support payments now automatically end?
No. 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, 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. Suer. 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's disability may militate against emancipation. In the case of Kruvant 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. 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.
6. 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 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.
7. My PSA provided that my child support payments automatically end once my children reach the age of 18 years of age. Is this
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.
8. 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.
9. 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 PSA's 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 miliary or any armed services of any country;
(e) Such other event as may be determined by law.
10. 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)(Chi1d'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 arrearages 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 dec1aring 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).
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