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CHILD SUPPORT IN NEW JERSEY
TABLE OF CONTENTS
TABLE OF CONTENTS
- Child support set under Guidelines if combined gross income less than $187,200 per year.
- Guidelines are formula based on average family spending in New Jersey.
- Guidelines consider many things, including number of children, income, and overnights.
- 50/50 parenting time requires deviation from Guidelines.
- Calculated as if both parents working at maximum capacity (even if not true).
- Child support generally collected via wage garnishment by Probation Division.
- Expenses covered by Guidelines set forth in Rules of Court.
- Other expenses may be added on top of Guidelines-level child support.
- Set under N.J.S.A. 2A:34-23 statutory factors if combined gross income more than $187,200.
- Also set under statutory factors if child lives at college.
- Statutory factors are highly discretionary, but primarily consider available assets and child’s reasonable needs.
- Child support may not be waived, even by agreement.
- Child support terminates at age 23 or earlier if child moves “beyond the sphere of influence” of parents.
- Parents generally must contribute to child’s college costs if financially capable.
- Child support subject to modification based on “changed circumstances.”
- Child support generally cannot be modified retroactively beyond date on which request to modify was filed with Court.
PARENTS HAVE DUTY TO SUPPORT CHILDREN
An unemancipated child has a right to receive support from both parents. [Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994).]
Indeed, all parents have a “fundamental duty to support his or her children to the greatest extent that they can.” [Monmouth County v. G.D.M., 308 N.J. Super. 83, 92 (Ch. Div. 1997).]
CHILD SUPPORT AND VISITATION ARE NOT INTERDEPENDENT
A parent must pay child support even if he or she has no visitation rights (or does not exercise them).
“[I]t has been emphasized time and time again that visitation and the obligation to pay child support are not interdependent.” [Ridley v. Ridley, 290 N.J. Super. 162, 160 (Ch. Div. 1996).]
“The law of this State is that a parent’s duty of support and rights of visitation are mutually independent.” [Kaplan v. Kaplan, 214 N.J. Super. 210, 219 (Ch. Div. 1986).]
“[T]he duty of a father to support his children and the right of a father to visitation and overnight custody are not dependent upon or connected with each other.” [Fiore v. Fiore, 49 N.J. Super. 219, 227 (App. Div. 1958).]
Further, a parent may exercise visitation even if he or she has no child support obligation (or refuses to pay it).
“The right of a father to visitation is not ‘dependent upon or connected’ with his duty to support.” [Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App.Div. 1971).]
“Visitation rights are enforceable even independently of the support obligation.” [In the Matter of the Adoption of Two Children by J.J.P., 175 N.J. Super. 420, 430 (App. Div. 1980).]
CANNOT WAIVE OBLIGATION OF CHILD SUPPORT, BUT MAY ALLOCATE BETWEEN PARENTS
“A corollary to the principle that child support belongs to the child is the principle that the right to receive child support may not be waived by a custodial parent.” [Colca v. Anson, 413 N.J. Super. 405, 420-21 (App. Div. 2010).]
“[T]he right to support belongs to the child. … For this reason and because of the State’s parens patriae interest in assuring a proper level of support for all children, the right to child support cannot be waived by the custodial parent. Whether or not defendant has a continuing obligation to support the child must be based upon an evaluation of the child’s needs and interests and not upon the conduct of the plaintiff. Each parent has a responsibility to share the costs of providing for the child while she remains unemancipated.” [Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).]
“[W]e hold the parental duty to support a child may not be waived or terminated by a property settlement agreement.” [Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003).]
“Of course, a parent cannot bargain away a child’s right to support because the right to support belongs to the child, not the parent, and no agreement between the parents can deprive a court of its authority to require that adequate provision be made for dependent children. On the other hand, however, nothing in the law, and no principle of public policy prevents a parent from freely undertaking to support a child beyond the presumptive legal limits of parental responsibility.” [Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).]
“Even an explicit waiver agreement can not vitiate a child’s right to support.” [Gotlib v. Gotlib, 399 N.J. Super. 295, 305 (App. Div. 2008).]
“Under New Jersey law, … the parties could have bargained concerning how they would divide college expenses between themselves. But they cannot bargain away [the child’s] rights, and thus eliminate their obligations to pay for her college expenses. This right is hers not theirs.” [Blum v. Ader, 279 N.J. Super. 1, 4 (App. Div. 1994).] The same principles apply to child support more broadly. After all, although the obligations are calculated under different standards (see below), Courts generally “view an imposed college contribution as simply another form of child support.” [Raynor v. Raynor, 319 N.J. Super. 591 (App. Div. 1999).]
SETTING CHILD SUPPORT
In New Jersey, the vast majority of child support awards are calculated under a mathematical formula known as the Child Support Guidelines. When the Court is considering an application to set or change child support, use of the Child Support Guidelines is a “rebuttable presumption,” which means that the Court must use the Guidelines unless a party shows it would be inappropriate. [R. 5:6A.]
The use of the Child Support Guidelines is a “rebuttable presumption” (discussed further below) whether your request for child support is being considered while the divorce is pending (also referred to as “pendente lite”), upon entry of a final judgment of divorce, or afterward on a post-judgment basis. “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.” [R. 5:6A.] “In accordance with Rule 5:6A, these guidelines must be used as a rebuttable presumption to establish and modify all child support orders. The guidelines must be applied in all actions, contested and uncontested, in which child support is being determined including those involving pendente lite (temporary) support, interstate support (Uniform Interstate Family Support Act (UIFSA)), domestic violence, foster care, divorce, non-dissolution, and public assistance (Temporary Assistance to Needy Families or TANF).” [Pressler, Current N.J. Court Rules, Appendix IX-A(2) (2017).]
The Court may deviate from the Child Support Guidelines only on finding “good cause” for doing so, which consists 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.” [R. 5:6A.]
“A rebuttable presumption means that an award based on the guidelines is assumed to be the correct amount of child support unless a party proves to the court that circumstances exist that make a guidelines-based award inappropriate in a specific case. The guidelines may be disregarded or a guidelines-based award adjusted if a party shows, and the court finds, that such action is appropriate due to conflict with one of the factors set forth in sections 4, 7, 10, 13, 14, 15 or 20 of Appendix IX-A, or due to the fact that an injustice would result due to the application of the guidelines in a specific case. The determination of whether good cause exists to disregard or adjust a guidelines- based award in a particular case shall be decided by the court.” [Pressler, Current N.J. Court Rules, Appendix IX-A(2) (2017).]
For most families, however, child support is calculated under the Guidelines without deviation. Appendix IX-B to the Rules of Court explains performing a Guidelines calculation in detail. [Pressler, Current N.J. Court Rules, Appendix IX-B (2017).]
The Guidelines, however, do not apply when the parents’ combined gross income exceeds $3,600 per week (i.e., $187,200 per year). [Pressler, Current N.J. Court Rules, Appendix IX-F (2017).]
When the parents’ combined net annual income is above $187,200 per year, “the child support award [under the Guidelines] represents the minimum basic support award. The Court must add a discretionary amount of child support to the minimum basic award based on the factors specified in N.J.S.A. 2A:34-23.” [Pressler, Current N.J. Court Rules, Appendix IX-F (2017).]
The factors specified by N.J.S.A. 2A:34-23 include the following:
- Needs of the child;
- Standard of living and economic circumstances of each parent;
- All sources of income and assets of each parent;
- Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
- Need and capacity of the child for education, including higher education;
- Age and health of the child and each parent;
- Income, assets and earning ability of the child;
- Responsibility of the parents for the court-ordered support of others;
- Reasonable debts and liabilities of each child and parent; and
- Any other factors the court may deem relevant. [N.J.S.A. 2A:34-23.]
Additional information on calculating child support awards in “Extreme Parental Income Situations” is available under Appendix IX-A to the Rules of Court. [Pressler, Current N.J. Court Rules, Appendix IX-A (2017).]
Additionally, the Guidelines do not apply to a child who lives on-campus at college. [Pressler, Current N.J. Court Rules, Appendix IX-A(18) (2017).] Instead, child support for children living at college must be on the factors identified under N.J.S.A. 2A:34-23, which are listed above. [Jacoby v. Jacoby, 427 N.J. Super. 109, 122 (App. Div. 2012).] Nevertheless, “the Child Support Guidelines may be applied in the court’s discretion to support for students over 18 years of age who commute to college.” [Jacoby v. Jacoby, 427 N.J. Super. 109, 120 (App. Div. 2012).]
SOLE PARENTING WORKSHEET VS. SHARED PARENTING WORKSHEET
When using the Child Support Guidelines, there are two worksheets available: (1) the sole parenting worksheet; and (2) the shared parenting worksheet.
While it has no effect on legal responsibility, the selection of a worksheet affects the assumptions regarding allocation of financial responsibility between the parents under the Guidelines. Thus, it often has a significant effect on the overall child support figure.
The sole parenting worksheet is used if the secondary caretaker has less than two overnights per week with the children (less than 104 overnights per year). A shared parenting worksheet is used if the secondary caretaker has two overnights or more per week with the children (104 overnights per year).
“Sole Parenting – The Sole-Parenting Worksheet (Appendix IX-C) shall be used in the following cases: no time sharing (i.e., the child resides with a parent 100% of the time), shared parenting (PAR Time) below the substantial equivalent of two or more overnights per week (28% of overnights), split parenting (i.e., multiple children; at least one child residing with each parent), and shared-parenting situations in which an adjusted award results in the PPR’s net household income falling below the PPR household income reserve set forth in Appendix IX-A, paragraph 14(d).
Shared Parenting – The Shared-Parenting Worksheet (Appendix IX-D) shall be used if the Parent of Alternate Residence has the child for the substantial equivalent of two or more overnights per week, excluding extended PAR Time (e.g., vacations) and has shown that separate living accommodations for the child are provided in the alternate household (see shared parenting standards in Appendix IX-A, paragraph 14(c)).” [Pressler, Current N.J. Court Rules, Appendix IX-A(13) to R. 5:6A (2017).]
Keep in mind that an overnight under the Child Support Guidelines does not necessarily refer to where the child sleeps. Instead, an “[o]vernight means the majority of a 24-hour day (i.e., more than 12 hours).” [Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A (2017).]
Further, “[v]acations and holidays with the PAR do not count towards the determination of overnight time” under the Guidelines. [Pressler, Current N.J. Court Rules, Appendix IX-B to R. 5:6A (2017).]
EFFECT OF EQUAL PHYSICAL CUSTODY (50/50 VISITATION)
A routine application of the Child Support Guidelines is inappropriate in situations where the parents share true joint physical custody (meaning 50/50 parenting time). The Guidelines take into account three categories of expenses:
“Fixed costs are those incurred even when the child is not residing with the parent. Housing-related expenses (e.g., dwelling, utilities, household furnishings and household care items) are considered fixed costs.
Variable costs are incurred only when the child is with the parent (i.e., they follow the child). This category includes transportation and food.
Controlled costs over which the PPR, as the primary caretaker of the child, has direct control. This category includes clothing, personal care, entertainment, and miscellaneous expenses.” [Pressler, Current N.J. Court Rules, Appendix IX-A(14)(f) to R. 5:6A (2017).]
The Guidelines, therefore, credit only the parent of primary residence with “controlled expenses.” For obvious reasons, that is untrue when the parents share true joint physical custody. In most circumstances of joint physical custody, the parents will maintain two separate sets of clothing, personal care items, entertain items, etc.
Consequently, “the court should not hesitate to make an appropriate adjustment to correct what otherwise would seem to be an injustice in applying the Guidelines without accounting for the unusual fact of the equal custody time between the two parents. Dividing the “controlled expenses” between the parties or designating both parents as PPR, would seem rational methods of accomplishing that end, although, if the court has some alternative which it deems more desirable, it should not feel preempted from employing such a device.” [Benisch v. Benisch, 347 N.J. Super. 393 (App. Div. 2002).]
The Appellate Division in Benisch v. Benisch, however, “did not establish a specific formula for making this adjustment and no other court has done so in a published decision.” [Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009).]
Subsequently, the Court in Wunsch-Deffler v. Deffler attempted to provide the specific formula, and that formula is widely adopted today:
“When the parties share an equal number of overnights with the child, the following three-step procedure should be used to adjust the paying parent’s child support obligation to account for the fact that both parties are responsible for paying the child’s ‘controlled expenses’ during their parenting time. This procedure will ‘back out’ the 25% in ‘assumed’ controlled expenses from the paying parent’s child support obligation. The first step is to multiply the Basic Child Support Amount determined in Line 9 of the Child Support Guidelines — Shared Parenting Worksheet by the payor’s income share. Second, this figure should be multiplied by 25%, which represents the controlled expenses assumed by the Guidelines. Third, the product of this calculation is then subtracted from the paying parent’s ‘Adjusted Basic CS Amount,’ as reflected on Line 15 of the Worksheet. The result reached is the payor’s child support obligation and takes into account that both parties, and not just the party receiving child support, pay controlled expenses for the child during their equally shared parenting time.” [Wunsch-Deffler v. Deffler, 406 N.J. Super. 505 (Ch. Div. 2009).]
EFFECT OF SPLIT PARENTING (I.E., CHILDREN DIVIDED BETWEEN PARENTS)
A routine application of the Child Support Guidelines is inappropriate in situations where the children have been split up between the parents. This is referred to as a split-parenting situation. In split-parenting situations, the Court will calculate two support obligations (from one parent to the other and vice versa) and the subtract them. The two awards are then subtracted, and the difference is paid as child support.
“Split-parenting situations are those in which there are multiple children of the relationship and each parent has physical custody of at least one child. To determine the net support obligation in split-parenting situations, a separate sole-parenting award must be calculated considering each parent as the non-custodial parent (obligor) for the number of children in the custody of the other parent. Instead of transferring the calculated awards between parents, the two awards are subtracted. The difference of the two awards is the child support order to be paid by the parent with the higher soleparenting award. If both parents serve as a PPR for at least one child of the relationship and the children share time with the other parent, the court should adjust each parent’s award to accommodate shared-parenting costs in accordance with the principles explained in the PAR Time sections of this Appendix before the two awards are subtracted.” [Pressler, Current N.J. Court Rules, Appendix IX-A(15) to R. 5:6A (2017).]
CHILD SUPPORT FOR CHILD IN COLLEGE
The Guidelines are intended to apply to children under the age of 18 who live at home with their parents. When the children are in college, application of the Guidelines is typically inappropriate. Nevertheless, the Guidelines may be applied (and frequently are) to children who continue to live at home and commute to college.
“These child support guidelines are intended to apply to children who are less than 18 years of age or more than 18 years of age but still attending high school or a similar secondary educational institution. For the reasons set forth below, the Appendix IX-F support schedules shall not be used to determine parental contributions for college or other post-secondary education (hereafter college) expenses nor the amount of support for a child attending college. The child support guidelines may be applied in the court’s discretion to support for students over 18 years of age who commute to college.” [Pressler, Current N.J. Court Rules, Appendix IX-A(18) to R. 5:6A (2017).]
When a child lives away from home at college, the Guidelines are not applicable.
“The payment of college costs differs from the payment of child support for a college student. The typical expenses associated with college attendance include tuition, registration fees, lab costs, housing, board, books, and computer costs. Although the child support needs lessened in certain areas such as room and board, which falls within college costs, arguably other necessary expenses may increase when a child goes to college.
This court has previously acknowledged the possible continued need to maintain a local residence for a child who returns home from college during school breaks and vacations. Automobile maintenance or payments, gasoline, parking, or alternate travel expenses); furniture (such as lamps, shelves, or dorm set-up and small appliances); clothing; linens and bedding; luggage; haircuts; telephone; supplies (like paper, pens, markers or calculators); sundries (such as cleaning supplies, laundry detergent); toiletries (soap, shampoo and other personal hygiene necessaries); insurance (automobile, health and personal property); entertainment for college events and organizations; and spending money. Some of these expenses may be incurred once, others may vary in need or amount year to year, while the remainder are constant.
This list is not exhaustive, but merely illustrative of costs associated with supporting a college experience.” [Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012).]
Clearly, the Guidelines do not apply to children living at college. Thus, what do we apply? The answer is the factors listed under N.J.S.A. 2A:34-23(a). “In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, the court in those cases not governed by court rule shall consider, but not be limited to, the following factors:
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.” [N.J.S.A. 2A:34-23(a).]
This standard is far more discretionary than the Guidelines, and decisions can vary greatly judge by judge and case by case. When litigating support for a college student, it is best to include an itemized breakdown of monthly expenses with supporting documentation with your motion or cross-motion.
COSTS COVERED BY THE GUIDELINES
Appendix IX-A to the Rules of Court explains which expenses are included under the Guidelines’ basic child support award:
“Housing – Mortgage principal and interest payments or home equity loans, property taxes, insurance, refinancing charges, repairs, maintenance, rent, parking fees, property management or security fees, expenses for vacation homes, lodging while out of town, utilities, fuels, public services, domestic services, lawn care, gardening, pest control, laundry and dry cleaning (nonclothing), moving and storage, repairs on home, furniture, major appliances, purchase or rental of household equipment of tools, postage, laundry or cleaning supplies, cleaning and toilet tissues, household and lawn products, stationary, all indoor and outdoor furniture, floor coverings, all small appliances and housewares (except personal care appliances), all household textiles (e.g., linens, drapes, slipcovers, sewing materials, etc.), and miscellaneous household equipment (e.g., clocks, luggage, light fixtures, computers and software, decorating items, etc.). The net purchase price of a home is not included as expenditures in this category.
Food – All food and non-alcoholic beverages purchased for home consumption or purchased away from home (including vending machines, restaurants, tips, school meals and catered affairs). Non-food items (e.g., tissue papers, alcoholic beverages, cigarettes) are not included.
Clothing – All children’s clothing (including school uniforms), footwear (except special footwear for sports), diapers, repairs or alterations to clothing and footwear, storage, dry cleaning, laundry, watches, and jewelry.
Transportation – All costs involved with owning or leasing an automobile including monthly installments toward principal cost, finance charges (interest), lease payments, gas and motor oil, insurance, maintenance and repairs. Also, included are other costs related to transportation such as public transit, parking fees, license and registration fees, towing, tolls, and automobile service clubs. The net outlay (purchase price minus the trade-in value) for a vehicle purchase is not included. Transportation also does not include expenses associated with a motor vehicle purchased or leased for the intended primary use of a child subject to the support order.
Unreimbursed Health Care Up to and Including $250 Per Child Per Year – Unreimbursed health-care expenditures (e.g., medical and dental) up to and including $250 per child per year are included in the schedules. Such expenses are considered ordinary and may include items such as non-prescription drugs, co-payments or health care services, equipment or products. The parent’s cost of adding a child to health insurance policy is not included in the schedules.
Entertainment – Fees, memberships and admissions to sports, recreational, or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.
Miscellaneous Items – Personal care products and services (e.g., hair, shaving, cosmetics), books and magazines, school supplies, cash contributions, personal insurance, and finance charges (except those for mortgage and vehicle purchases).” [Pressler, Current N.J. Court Rules, Appendix IX-A(8) (2017).]
COSTS NOT COVERED BY THE GUIDELINES
Appendix IX-A to the Rules of Court explains which expenses are not included under the Guidelines’ basic child support award. Specifically, “[b]ecause some child-related expenses represent large or variable expenditures or are not incurred by typical intact families, it is not appropriate to include them in the Appendix IX-F basic child support awards. The items listed below are not included in the Appendix IX-F child support awards. If incurred in a particular case, these expenses should be added to the basic support obligation.
a. Child-Care Expenses – The average cost of child care, including day camp in lieu of child care, is not factored into in the schedules. The net cost (after tax credits) of work-related child care should be added to the basic obligation 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 – Unreimbursed health-care expenses for a child in excess of $250 per child per year are not included in the schedules. Such expenses should be added to the basic obligation if they are predictable and recurring. Healthcare expenses for a child that exceed $250 per child per year that are not predictable and recurring should be shared by the parents in proportion to their relative incomes as incurred (i.e., the sharing of these expenses should be addressed in the general language of the order or judgment). Health care costs that are not included in the support award should be paid directly to the parent who made or will make the expenditure or directly to the provider of the health care (also, see N.J.S.A. 2A:34- 23b).
d. Other Expenses Approved by the Court – These are predictable and recurring expenses for children that may not be incurred by average or intact families such as private elementary or secondary education, special needs of gifted or disabled children, and visitation transportation expenses. The addition of these expenses to the 9 basic obligation must be approved by the court. If incurred, special expenses that are not predictable and recurring should be shared by the parents in proportion to their relative incomes (i.e., the sharing of these expenses should be addressed in the general language of the order or judgment). Special expenses not included in the award should be paid directly to the parent who made or will make the expenditure or to the provider of the goods or services.” [Pressler, Current N.J. Court Rules, Appendix IX-A(8) (2017).]
CHANGING CHILD SUPPORT
Generally, to request modification of a child support order, you file a motion requesting modification. The process of filing a motion is more fully addressed elsewhere in the Guide: [MNJD Guide to Motions.]
AFTER FINAL JUDGMENT. Even after child support has been set, it is subject to review at any time. The standard for a change in the amount of support payments is that “the party seeking modification has the burden of showing such ‘changed circumstances’ as would warrant relief from the support or maintenance provisions involved.” [Lepis v. Lepis, 83 N.J. 139, 157 (1980).]
“[T]he changed circumstances determination must be made by comparing the parties’ [and their children’s] financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations.” [Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).]
“Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.” [Lepis v. Lepis, 83 N.J. 139, 151 (1980).]
Examples of changed circumstances include: (1) an increase in the cost of living; (2) increase or decrease in the supporting spouse’s income; (3) illness, disability or infirmity arising after the original judgment; (4) the dependent spouse’s loss of a house or apartment; (5) the dependent spouse’s cohabitation with another; (6) subsequent employment by the dependent spouse; and (7) changes in federal income tax law. [Lepis v. Lepis, 83 N.J. 139, 151 (1980).]
It is, therefore, up to the moving party to make a prima facie case that changed circumstances have occurred. [Lepis v. Lepis, 83 N.J. 139, 157 (1980).]
“By prima facie is meant evidence that, if unrebutted, would sustain a judgment in the proponent’s favor.” [Baures v. Lewis, 167 N.J. 92, 118 (2001).]
“[C]ourts have recognized that the prima facie case is to be evaluated solely on the basis of the evidence presented by the plaintiff, irrespective of defendants’ efforts to dispute that evidence.” [Zive v. Stanley Roberts, Inc., 182 N.J. 436, 448 (2005).]
Second, after the moving party has made the prima facie showing of changed circumstances, the court may order financial disclosures of both parties to allow the court to make an informed decision as to “what, in light of all the [circumstances] is equitable and fair.” [Lepis v. Lepis, 83 N.J. 139, 158 (1980).]
There are further requirements in an application for a modification of support:
“When a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion. When a motion or cross-motion is filed to establish alimony or child support, the pleadings filed in support of, or in opposition to the motion, shall include a copy of a current case information statement. In the event a motion or cross-motion is filed to modify an obligation for alimony or child support based on changed circumstances, the movant shall append copies of the movant’s current case information statement and the movant’s case information statement previously executed or filed in connection with the order, judgment or agreement sought to be modified. If the court concludes either that the party seeking relief has demonstrated a prima facie showing of a substantial change of circumstances or that there is other good cause, then the court will order the opposing party to file a copy of a current case information statement.” [R. 5:5-4(a).]
The requirement that both parties update their financial disclosures prior to recalculation of child support must be enforced; it “is not just window dressing.” [Gulya v. Gulya, 251 N.J. Super. 250, 253 (App. Div. 1991).]
“Once the above steps have been completed, the court must decide whether to hold a hearing . . . . [A] party must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary. . . . In determining whether a material fact is in dispute, a court should rely on the supporting documents and affidavits of the parties. Conclusory allegations would, of course, be disregarded.” [Lepis v. Lepis, 83 N.J. 139, 159 (1980).]
PENDENTE LITE. The standard above only applies after child support has been set by final judgment. Divorce cases in New Jersey, however, often require a significant amount of time to get to final judgment (sometimes years). When temporary child support is set pendente lite (which is a Latin term meaning “during the proceeding”), the Court has the authority to modify its order at any time “for good cause shown and in the service of the ultimate goal of substantial justice.” [Lombardi v. Masso, 207 N.J. 517 (2011).] [R. 4:42-2.] The Court has “has complete power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so.” [Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983).] This standard employed pendente lite is far more flexible and discretionary than the standard at final judgment.
Notably, the Courts will often set “unallocated” support awards pendente lite. An unallocated support award is based on each party’s overall financial resources and needs without making a distinction between child support and alimony. That is not, however, the proper method. The Rules of Court require the use of the Child Support Guidelines both pendente lite and at final judgment: “The guidelines must be applied in all actions … in which child support is being determined including those involving pendente lite (temporary) support[.]” [Pressler, Current N.J. Court Rules, Appendix IX-A(2) (2017).] Accordingly, upon or after final judgment, the Court should set alimony first and then set child support second: “If child support and alimony, maintenance, or spousal support are being determined simultaneously (for the same family), the court shall determine the amount of alimony, maintenance, or spousal support before applying the child support guidelines, except when the court establishes pendente lite support.” [Pressler, Current N.J. Court Rules, Appendix IX-A(19) (2017).] Nevertheless, as implied under Appendix IX-A, the Court typically sets child support first and then alimony second when ordering support on a pendente lite basis.
WHAT IS THE DIFFERENCE BETWEEN AN INTERLOCUTORY AND A FINAL ORDER?
The distinction between an interlocutory (also known as “pendente lite”) order and a final order is worth exploring. An interlocutory order is one that does not resolve all issues as to all parties.
“[A]ny order or form of decision which adjudicates fewer than all the claims as to all the parties shall not terminate the action as to any of the claims, and it shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice.” [R. 4:42-2.]
An interlocutory order by its very nature is temporary and often entered based on incomplete or conflicting evidence. After all, the Court generally has not taken testimony at trial, allowed cross-examination, heard expert opinions, or had the benefit of complete disclosure of the relevant facts obtained during the discovery phase of litigation.
A final order/judgment does resolve all issue as to all parties.
“It is firmly settled that ‘final judgment,’ as used in the rules, means final judgment or final disposition of the case not only as to all issues but as to all parties.” [Thatcher v. Jerry O’Mahony, Inc., 37 N.J. Super. 139, 142-143 (App. Div. 1955).]
To constitute a final judgment, the order generally must “dispose of all claims against all parties.” [S.N. Golden Estates, Inc. v. Cont’l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998).]
Generally, in a divorce proceeding, every order is interlocutory until a final judgment of divorce is entered. When the order results from a post-judgment motion, however, it is generally final. But a post-judgment order may be interlocutory depending on the circumstances. For example, if further proceedings are scheduled by a post-judgment order (e.g., a plenary hearing), it is probably interlocutory.
The distinction between an interlocutory order and a final order can be quite tricky in the post-judgment context, and I strongly recommend consulting an experienced attorney.
ANTI-RETROACTIVE MODIFICATION STATUTE
In New Jersey, the Courts generally will not permit modification of a child support obligation beyond the date on which a motion requesting modification is filed:
“Any payment or installment of an order for child support, or those portions of an order which are allocated for child support, whether ordered in this State or in another state, shall be fully enforceable and entitled as a judgment to full faith and credit and shall be a judgment by operation of law on and after the date it is due. For obligors who reside or own property in this State, such judgments, once docketed with the Clerk of the Superior Court, shall have the same force and effect, be enforced in the same manner and be subject to the same priorities as a civil money judgment entered by the court. The State shall accord full faith and credit to child support judgments or liens of other states, whether arising by operation of law or having been entered by a court or administrative agency, when a Title IV-D agency, a party, or other entity seeking to enforce such a judgment or lien in this State files a Notice of Interstate Lien, in the form prescribed by the federal Office of Child Support Enforcement, and supporting documents with the Clerk of the Superior Court. An action to domesticate a foreign child support judgment or lien shall be consistent with the “Uniform Enforcement of Foreign Judgments Act,” P.L. 1997, c. 204 (C.2A:49A-25 et seq.). Liens against real and personal property shall be subject to the same enforcement procedures as other civil money judgments except that no judicial notice or hearing shall be required to enforce the lien. No payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of P.L.1993, c. 45 (C.2A:17-56.23a), shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court.” [N.J.S.A. 2A:17-56.23a.]
There are, however, a number of exceptions to the general rule barring retroactive modification of child support, including:
- Emancipation; [Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995).]
- Child’s death; [Centanni v. Centanni, 408 N.J. Super. 78, 82 (Ch. Div. 2009).]
- Orders increasing, rather than decreasing, child support; [Keegan v. Keegan, 326 N.J. Super. 289, 294 (App. Div. 2009).]
- Pendente lite (i.e., during a proceeding) child support orders; [Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).]
As to retroactive increases (rather than decreases), the Appellate Division has concluded that “the anti-retroactive support statute’s applicability is limited to prevent retroactive modifications decreasing or vacating orders allocated for child support.” [Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999).]
“[T]he purpose of the statute was to remedy the loopholes of interstate child support enforcement laws in order to benefit children, not to eliminate any perceived unfairness as suggested by [the payor]. Nothing in the legislative history suggests that the law was enacted to protect ‘parents’ from retroactive modifications increasing support obligations where equitable.” [Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999).]
One circumstance in which retroactive increases have been deemed equitable occurred where the Court acted to prevent a party from benefiting from the failure to disclose a substantial increase in income. The Court held, “Had defendant made a timely disclosure of his 1990 income, his child support would have been modified. His failure to do so cannot benefit him to the detriment of his children despite the statutory language to the contrary.” [Lanza v. Lanza, 268 N.J. Super. 603, 607 (Ch. Div. 1993).] As a practical matter, however, Courts are often extremely reluctant to modify child support beyond the date on which a motion requesting child support is filed, regardless of whether the retroactive modification requested is intended to increase or decrease child support.
NECESSITY OF CASE INFORMATION STATEMENTS
When you file a motion requesting child support in a divorce proceeding, you are required to attach a completed Case Information Statement. Specifically, the Rules of Court state as follows: “When a motion or cross-motion is filed to establish alimony or child support, the pleadings filed in support of, or in opposition to the motion, shall include a copy of a current case information statement.” [R. 5:5-4(a).]
When you file a motion requesting to modify child support based on changed circumstances, you are required to attach a newly-completed Case Information Statement and the Case Information Statement filed when the child support order you are asking to change was established. Specifically, the Rules of Court state as follows: “In the event a motion or cross-motion is filed to modify an obligation for alimony or child support based on changed circumstances, the movant shall append copies of the movant’s current case information statement and the movant’s case information statement previously executed or filed in connection with the order, judgment or agreement sought to be modified.” [R. 5:5-4(a).]
If the moving party successfully established a prima facie case of changed circumstances warranting modification of support, the Court will require the responding party to file a Case Information Statement too. Specifically, the Rules of Court provide as follows: “If the court concludes either that the party seeking relief has demonstrated a prima facie showing of a substantial change of circumstances or that there is other good cause, then the court will order the opposing party to file a copy of a current case information statement.” [R. 5:5-4(a).] In many cases, the responding party will simply complete a Case Information Statement and attach the document to his responding paperwork to expedite the process.
Compliance with these rules is mandatory. The Court can and most often will refuse to consider your request to establish or modify child support if you fail to provide an updated Case Information Statement (commonly referred to as a “CIS”), and in cases where you are seeking modification, your previously-filed Case Information Statement. In fact, the Appellate Division has held that a Trial Court committed reversible error when it ordered child support without the benefit of filed Case Information Statements. [Terry v. Terry, 270 N.J. Super. 105 (App. Div. 1994).] The requirement that the party seeking establishment or modification of support submit a Case Information Statement “is not just window dressing. It is, on the contrary, a way for the trial judge to get a complete picture of the finances of the movant in a modification case.” [Gulya v. Gulya, 251 N.J. Super. 250, 253-254 (App. Div. 1991).]
NO MODIFICATION FOR TEMPORARY CHANGE
“Courts have consistently rejected requests for modification based on circumstances which are only temporary or which are expected but have not yet occurred.” [Lepis v. Lepis, 83 N.J. 139, 151 (1980).]
“Temporary circumstances are an insufficient basis for modification.” [Innes v. Innes, 117 N.J. 496, 504 (1990).]
Temporary unemployment is insufficient. “Parenthetically there is nothing in the record before us to indicate that the defendant is incapacitated or otherwise incapable of working or that his unemployment is other than temporary.” [Bonanno v. Bonanno, 4 N.J. 268, 275 (1950).]
In Larbig v. Larbig, the Court refused a hearing on the factual issues on the basis that “after just 20 months, not enough time had elapsed for the Court to be convinced that the decrease was anything but temporary.” [Larbig v. Larbig, 384 N.J. Super. 17(App. Div.2006).]
MUST DEMONSTRATE ATTEMPTS TO IMPROVE DIMINISHED CIRCUMSTANCES
In Arribi v. Arribi, the Court held that a father who was ordered to pay child support could not decide to accept only employment in his field after becoming unemployed and thereby remaining, for a considerable period of time, financially unable to pay child support. [Arribi v. Arribi, 186 N.J. Super. 116, 118 (Ch. Div. 1982).]
“One cannot find himself in, and choose to remain in, a position where he has diminished or no earning capacity and expect to be relieved of or to be able to ignore the obligations of support to one’s family.” [Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015).]
“As we have recognized, it is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances.” [Donnelly v. Donnelly, 405 N.J. Super. 117, 132, n.5 (App. Div. 2009).]
In Aronson v. Aronson, the Court denied a request to modify support because “in the face of what he testified were external pressures on the viability of his practice, [he had an obligation] to attempt to earn more money. He did not do so. … Clearly, defendant made no meaningful effort to improve his status. On the contrary, what he did was to allow his practice to continue to diminish unchecked while bemoaning his fate.” [Aronson v. Aronson, 245 N.J. Super. 354, 361 (App. Div. 1991).]
The Court will set child support as if both parents are working at maximum capacity, whether or not that is true. When the Court assigns an income to a parent based on the amount of income he or she is capable of earning, rather than actually earning, it is known as “imputed income.” The imputation of income is addressed directly in the Rules of Court and in numerous cases as well.
“If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent according to the following priorities:
a. impute income based on potential employment and earning capacity using the parent’s work history, occupational qualifications, educational background, and prevailing job opportunities in the region. The court may impute income based on the parent’s former income at that person’s usual or former occupation or the average earnings for that occupation as reported by the New Jersey Department of Labor (NJDOL);
b. if potential earnings cannot be determined, impute income based on the parent’s most recent wage or benefit record (a minimum of two calendar quarters) on file with the NJDOL (note: NJDOL records include wage and benefit income only and, thus, may differ from the parent’s actual income); or
c. if a NJDOL wage or benefit record is not available, impute income based on the full-time employment (40 hours) at the prevailing New Jersey minimum wage.” [Pressler, Current N.J. Court Rule, Appendix IX-A(12) (2017).]
“In determining whether income should be imputed to a parent and the amount of such income, the court should consider:
(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,
(2) the reason and intent for the voluntary underemployment or unemployment,
(3) the availability of other assets that may be used to pay support, and
(4) the ages of any children in the parent’s household and child-care alternatives.” [Pressler, Current N.J. Court Rule, Appendix IX-A(12) (2017).]
“The determination of imputed income shall not be based on the gender or custodial position of the parent. Income of other household members, current spouses, and children shall not be used to impute income to either parent except when determining the other-dependent credit.” [Pressler, Current N.J. Court Rule, Appendix IX-A(12) (2017).]
When imputing income to a parent who is caring for young children, the parent’s income share of child-care costs necessary to allow that person to work outside the home shall be deducted from the imputed income.” [Pressler, Current N.J. Court Rule, Appendix IX-A(12) (2017).]
“Certainly, the court is authorized to impute income for the purpose of determining child support when a parent is found to be voluntarily unemployed or underemployed without cause. In treating the matter of support, our courts have always looked beyond the parent’s claims of limited resources and economic opportunity. They have gone far to compel a parent to do what in equity and good conscience should be done for the children. Thus, a court has every right to appraise realistically a defendant’s potential earning power, and examine potential earning capacity rather than actual income, when imputing the ability to pay support.” [Elrom v. Elrom, 439 N.J. Super. 434, 435 (App. Div. 2015).]
A parent’s ability to earn income, or “his [or her] human capital,” should be “theoretically activated for the purpose of evaluating his [or her] support obligation” and the amount of income that “should be imputed to him [or her].” [Caplan v. Caplan, 182 N.J. 250, 270 (2005).]
GREATER BURDEN ON SELF-EMPLOYED WHEN SEEKING MODIFICATION
Courts generally apply closer scrutiny to requests for modification when advanced by a self-employed individual on the understanding that those who are self-employed have a greater ability to manipulate the appearance of their financial circumstances. “What constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor, as here, who is in a better position to present an unrealistic picture of his or her actual income than a W-2 earner.” [Donnelly v. Donnelly, 405 N.J. Super. 117, 128-29 (App. Div. 2009).]
All duties running from a parent to a child are terminated when that child is emancipated. In general, emancipation is “the act by which a parent relinquishes the right to custody and is relieved of the duty to support a child.” [Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).]
Although parents generally are not under a duty to support children after the age of majority, emancipation is not automatically granted upon reaching any particular age. [Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).]
Rather, the determination is fact-sensitive, and the Court must examine the circumstances of each individual case. [Newburgh v. Arrigo, 88 N.J. 529, 543 (1982); Weitzman v. Weitzman, 228 N.J. Super. 346, 356 (App. Div. 1988).]
The age of majority does, however, provide prima facie proof that the child is emancipated. [Baldino v. Baldino, 241 N.J.Super. 414, 418 (Ch. Div. 1990).]
Proof of majority satisfies a non-custodial parent’s prima facie showing, shifting the burden to rebut the statutory presumption of emancipation to the custodial parent. [Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).]
To decide whether emancipation is the proper course, the court must determine whether the child has “move[d] beyond the sphere of influence and responsibility exercised by a parent and obtain[ed] an independent status on his or her own . . . .” [Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995).]
That determination “involves a critical evaluation of the prevailing circumstances including the child’s need, interests, and independent resources, the family’s reasonable expectations, and the parties’ financial ability, among other things.” [Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006).]
A well-established instance defeating a request for emancipation and requiring continued support occurs when a custodial parent proves the child remains a full-time student. [Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972).] When a dependent child is enrolled in a full-time educational program, child support generally must continue. “The Legislature and our courts have long recognized a child’s need for higher education and that this need is a proper consideration in determining a parent’s child support obligation.” [Gac v. Gac, 186 N.J. 535, 542 (2006).] “While parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support.” [Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003).]
The child is generally required to perform adequately in his or her classes to remain unemancipated. A child pursuing post-secondary education may no longer be dependent when the “child [is] unable to perform adequately in his academic program.” [Filippone v. Lee, 304 N.J. Super. 301, 311-12 (App. Div. 1997).] Partly for that reason, a custodial parent receiving support for the child is obliged to provide confirmation to the supporting parent of the number of academic credits a child is taking. [Tretola v. Tretola, 389 N.J. Super. 15, 20 (App. Div. 2006).] Indeed, “both the student and the custodial parent each have a responsibility and obligation to make certain that the non-custodial parent is provided with ongoing proof of the student’s college enrollment, course credits and grades.” [Van Brunt v. Van Brunt, 419 N.J. Super. 327 (Ch. Div. 2010).]
Full-time enrollment in college, however, is not the only reason to delay emancipation for a child over age eighteen. Courts have recognized that full-time or uninterrupted college attendance is not invariably required to forestall emancipation. For example, a hiatus from college during which the child worked full-time did not result in emancipation. [Keegan v. Keegan, 326 N.J. Super. 289, 295 (App. Div. 1999).] Courts have also, in appropriate cases, held that a “brief hiatus” between high school and college, which is becoming more common, should not foreclose parental support, although it is “inappropriate to require [a parent] to contribute to [the child’s] college education” where child took a four-year hiatus, remained continuously employed, and had expressed no interest in a college education. [Sakovits v. Sakovits, 178 N.J. Super. 623, 631-32 (Ch. Div. 1981).]
In appropriate circumstances, a child who was previously emancipated may be unemancipated and his or her parents required to contribute toward college costs. For example, a child who was emancipated due to enrollment in the military but then returned and desired to pursue his college education was unemancipated and his parents potentially required to pay support and college costs. [White v. White, 313 N.J. Super. 637 (Ch. Div. 1998).]
When there is a gap or hiatus in a child’s formal education, however, Courts have cautioned of the need to apply a reasonable limitation so that parents are not subject to “an unreasonable open-ended burden.” [Sakovits v. Sakovits, 178 N.J. Super. 623, 631-32 (Ch. Div. 1981).] Nevertheless, as pointed out by Judge Kraft in Baldino v. Baldino, “Today, 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.” [Baldino v. Baldino, 241 N.J.Super. 414, 417 (Ch. Div. 1990).]
Perhaps because of the open-ended nature of child support obligations under prior law, the New Jersey Legislature recently passed a new child support statute mandating that child support shall not extend beyond the age of 23 (discussed in greater detail below). The interplay between that new law and previous case law is yet to be resolved by the Courts.
NEW TERMINATION OF CHILD SUPPORT LAW (EFFECTIVE FEBRUARY 1, 2017)
The New Jersey Legislature has passed a new child support statute that took effect effect on February 1, 2017. The new law is applicable “to all child support orders issued prior to, on, or after the effective date[,]” [S-1046/A-2721,] which means it affects every child support obligation in the state.
First and foremost, please note that the law addressed termination of child support, which is slightly different from emancipation even if the practical effect is often the same. Emancipation has its own body of case law and results in termination of all obligations from parent to child. Child support is but one obligation of many that a parent might have toward his or her children. To learn more about emancipation, please read the “Emancipation” section above.
Under New Jersey’s new termination of child support law, “Unless otherwise provided in a court order or judgment, the obligation to pay child support shall terminate by operation of law without order by the court on the date that a child marries, dies, or enters the military service. In addition, a child support obligation shall terminate by operation of law without order by the court when a child reaches 19 years of age unless: (1) another age for the termination of the obligation to pay child support, which shall not extend beyond the date the child reaches 23 years of age, is specified in a court order; (2) a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19 in accordance with subsection b. of this section; or (3) the child receiving support is in an out-of-home placement through the Division of Child Protection and Permanency in the Department of Children and Families.” [S-1046/A-2721.]
Subsection (b) of the statute goes on to provide as follows: “b. (1) In response to a notice of proposed termination of child support …, a custodial parent may submit a written request, on a form and within timeframes promulgated by the Administrative Office of the Courts, with supporting documentation to the court, including a projected future date when support will terminate, seeking the continuation of child support beyond the date the child reaches 19 years of age in the following circumstances:
(a) the child is still enrolled in high school or other secondary educational program;
(b) the child is a student in a post-secondary education program and is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any five calendar months of the year; or
(c) the child has a physical or mental disability, as determined by a federal or State government agency, that existed prior to the child reaching the age of 19 and requires continued child support[.]
(2) A custodial parent may file a motion with the court seeking to extend the obligation to pay child support beyond the date the child reaches 19 years of age due to exceptional circumstances as may be approved by the court.” [S-1046/A-2721.]
Thus, under the new statute, child support appears to terminate at age 19 but may be continued until a maximum of 23 years old under limited circumstances, including continued enrollment in high school, full-time enrollment in college or other post-secondary education, or disability that came into existence prior to the child reaching age 19.
Some judges and lawyers believe this new law is merely a procedural change. More specifically, they believe the law is designed to shift the burden of requesting continued support from the parent paying support to the parent receiving support. Previously, the law required the person paying child support for a child over 18 to file a motion to emancipate. Under the new law, the person receiving child support has to file a written request (or if the written request is denied, then a motion) to continue child support after his or her child reaches 19 years of age. I disagree with the argument that the law is purely procedural; there seem to be at least some clearly substantive aspects of the law. For example, nothing in preexisting law required child support to terminate at age a maximum of age 23. That, in my opinion, is a brand new and non-procedural change. But it also seems clear that the law is procedural in part. For example, although child support will presumptively continue if the child is enrolled in college full-time, I doubt that the law will be interpreted to change the preexisting requirement that the child also perform well in his or her classes. Thus, for example, even if the Probation Division continues child support at a parent’s request for a child enrolled full-time in college, there is nothing in the law that will prevent a Court from emancipating that child (and thus terminating child support) if he or she fails to pass those classes. Nevertheless, there is room for reasonable minds to disagree until either the Appellate Division or the Supreme Court speaks on the issue, and unfortunately, that will likely take years. In the meantime, the legal community is feverishly debating the point and Court decisions will likely emerge across the spectrum.
Finally, and critically, when there are multiple children under a support order and the support order is not allocated between each child (as with virtually all support orders), termination of child support for one child will not automatically result in reduction or recalculation of support for the remaining child/children. Instead, the parent paying support will still have to file a motion seeking to recalculate child support. The Probation Division will not automatically reduce or recalculate support, even under the new law. It may be wise, for that reason, to allocate support between children in settlement agreements going forward, thus avoiding the need for unnecessary motion practice down the road.
Clearly, a parent’s obligation to contribute toward his or her child’s college costs is a form of child support. “We view an imposed college contribution as simply another form of child support.” [Raynor v. Raynor, 319 N.J. Super. 591 (App. Div. 1999).] Nevertheless, the obligations are also legally distinct and calculated separately. “The payment of college costs differs from the payment of child support for a college student.” [Jacoby v. Jacoby, 427 N.J. Super. 109, 121 (App. Div. 2012).]
“In general, financially capable parents should contribute to the higher education of children who are qualified students.” [Newburgh v. Arrigo, 88 N.J. 529, 544 (1982).]
In determining parents’ required contributions to their children’s college costs, the Court must consider the following factors:
- whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
- the effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
- the amount of the contribution sought by the child for the cost of higher education;
- the ability of the parent to pay that cost;
- the relationship of the requested contribution to the kind of school or course of study sought by the child;
- the financial resources of both parents;
- the commitment to and aptitude of the child for the requested education;
- the financial resources of the child, including assets owned individually or held in custodianship or trust;
- the ability of the child to earn income during the school year or on vacation;
- the availability of financial aid in the form of college grants and loans;
- the child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
- the relationship of the education requested to any prior training and to the overall long-range goals of the child. [Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).]
“While among the Newburgh factors, the parents’ ability to pay is clearly the most significant, this factor alone should not be considered to the exclusion of all others. The judge had an obligation under Newburgh and N.J.S.A. 2A:34-23(a) to consider all the enumerated factors, including the financial resources of the children and plaintiff’s financial circumstances, in rendering a decision.” [Raynor v. Raynor, 319 N.J. Super. 591, 605 (App. Div. 1999).]
The absence of a relationship between the parent and child is a consideration in setting an obligation toward college costs. The lack of a relationship may permit, but does not require, the Court to terminate the college costs obligation. For example, the Appellate Division found it inappropriate to compel the father to contribute to his daughter’s college expenses when there was no “meaningful father-daughter relationship.” [Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996).] The New Jersey Supreme Court endorsed this view, but cautioned that the relationship between the parent and child is but one factor to consider among many. [Gac v. Gac, 186 N.J. 535 (2006).] Even if there is no relationship between parent and child, the ultimate determination will depend on the complete facts of each case.
The Court should also take into what either the parent or the child is willing to do at the time the request is made to heal the relationship; where one or the other seems obstinate and unwilling to move forward and reconnect, that too may be a consideration in setting a college costs obligation. For example, “[i]f an adult ‘child’ refuses to have a relationship with a parent without a clear showing of exceptional circumstances [such as substantiated abuse], and if that child further refuses to participate in trying to heal the relationship, such as by joining the parent in professional counseling, then the child’s message rings loud and clear that from his or her own subjective perspective, the parent/child relationship no longer has any value. When an adult child takes this type of dismissive attitude towards the parent/child relationship. and instead continues to harbor endless resentment towards the parent with no good faith effort at rehabilitation or reconciliation, then the idea of the child simultaneously demanding college contribution from the parent may be viewed by a court of equity as fundamentally unfair and inequitable to the parent, even after considering all of the other applicable criteria under Newburgh.” [Black v. Black, 436 N.J. Super. 130 (Ch. Div. 2013).]
Parties are, of course, allowed to agree regarding the division of responsibility for their children’s college costs. If the issue is agreed upon in a Marital Settlement Agreement, there is no need to evaluate the factors listed above. “[W]here parties to a divorce have reached an agreement regarding children attending college and how those college expenses should be divided, and no showing has been made that the agreement should be vacated or modified, the Family Part need not apply all twelve factors pertinent to college expenses as identified in Newburgh. Rather, the court should enforce the agreement as written.” [Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 591 (App. Div. 2016).] This language, however, leaves open the possibility that an agreement about the division of college costs may be modifiable on a showing that circumstances have changed since the agreement was entered.
ENFORCING CHILD SUPPORT
The most simple and effective means of enforcing a child support order is to request payment through the Probation Department via wage garnishment. In fact, wage garnishment through the Probation Department is the first and primary method by which the Courts will require child support to be paid. [N.J.S.A. 2A:17-56.8.]
The Probation Department, through the New Jersey Child Support Enforcement Program, has a variety of tools to make sure child support gets paid, including but not limited to the following:
- Income withholding (i.e., wage garnishment);
- Credit reporting;
- Lottery prize intercept;
- Tax fund offset;
- Seizure of assets;
- License suspension (driver’s, professional or recreational);
- Passport denial;
- Civil awards/settlements;
- Court enforcement;
- Warrants for Arrest;
- Judgements; and
- New Hires Directory. [NJChildSupport.org.]
When support is being paid directly, or if you want to seek enforcement over and above the measures imposed by the Probation Department, you generally must file a motion requesting enforcement. The process of filing a motion is more fully addressed elsewhere in the Guide: [MNJD Guide to Motions.] Please also review the section of the MNJD Guide on seeking enforcement of Court Orders: [MNJD Guide to Enforcement.] Further, there are certain procedural requirements. Specifically, “[w]hen a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion.” [R. 5:5-4(a).]
The Courts have a wide variety of remedies that can be imposed when a parent fails to pay child support. “On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by R. 1:10-3, grant any of the following remedies, either singly or in combination:
- fixing the amount of arrearages and entering a judgment upon which interest accrues;
- requiring payment of arrearages on a periodic basis;
- suspension of an occupational license or driver’s license consistent with law;
- economic sanctions;
- participation by the party in violation of the order in an approved community service program;
- incarceration, with or without work release;
- issuance of a warrant to be executed upon the further violation of the judgment or order; and
- any other appropriate equitable remedy.” [R. 5:3-7(b).]
ATTORNEY’S FEES FOR ENFORCING CHILD SUPPORT
In any family court proceeding, you may be entitled to reimbursement of attorney’s fees. In deciding such a request, the Court is required to consider the following factors:
- the financial circumstances of the parties;
- the ability of the parties to pay their own fees or to contribute to the fees of the other party;
- the reasonableness and good faith of the positions advanced by the parties both during and prior to trial;
- the extent of the fees incurred by both parties;
- any fees previously awarded;
- the amount of fees previously paid to counsel by each party;
- the results obtained;
- the degree to which fees were incurred to enforce existing orders or to compel discovery; and
- any other factor bearing on the fairness of an award. [R. 5:3-5(c).]
There is, however, a special provision of the law relating to family court proceedings for collection of child support. Specifically, if you are required to hire an attorney to seek enforcement of child support, the Court is required to order the nonpaying parent to pay those counsel fees unless it finds that the default was substantially justified or that other circumstances make an award of counsel fees unjust. [N.J.S.A. 2A:34-23a.]
CRIMINAL CHARGE FOR WILLFUL NONSUPPORT
In the State of New Jersey, it is a crime to willfully refuse to pay support. Specifically, “A person commits a crime of the fourth degree if he willfully fails to provide support which he can provide and which he knows he is legally obliged to provide to a spouse, child or other dependent.” [N.J.S.A. 2C:24-5.]
Further, “[a]t any time after a sworn complaint is made charging an offense under section 2C:24-5 and before trial, the court may enter such temporary order as may seem just, providing for the support of the spouse or children, or both, pendente lite, and may punish a violation of such order as for contempt.” [N.J.S.A. 2C:62-1(a).]
“Before trial, with the consent of the defendant, or after conviction, instead of imposing the penalty provided for violation of section 2C:24-5, or in addition thereto, the court, having regard to the circumstances and the financial ability or earning capacity of the defendant, may make an order, which shall be subject to change by the court from time to time as circumstances may require, directing the defendant to pay a sum certain periodically to the spouse, or to the guardian or custodian of the minor child or children, or to an organization or individual approved by the court as trustee. The court may release the defendant from custody on probation, upon his or her entering into a recognizance, with or without surety, in such sum as the court may order and approve. The condition of the recognizance shall be such that if the defendant shall personally appear in court whenever ordered to do so, and shall comply with the terms of the order, or of any modification thereof, the recognizance shall be void, otherwise it will remain in full force and effect. The court may, in addition to or in place of any order under this section, order and direct that any sentence of imprisonment be served periodically, instead of consecutively, during periods of time between Friday at 6 p.m. and Monday at 8 a.m. or at other times or on other days, whenever the court determines the existence of proper circumstances and that the ends of justice will be served thereby. Any person so imprisoned shall be given credit for each day or fraction of a day to the nearest hour actually served.” [N.J.S.A. 2C:62-1(b).]
“If the court be satisfied by information and due proof under oath that the defendant has violated the terms of the order, it may forthwith proceed with the trial of the defendant under the original charge, or sentence the defendant under the original conviction or plea of guilty, or enforce the suspended sentence or punish for contempt, as the case may be. In case of forfeiture of a recognizance, and the enforcement thereof by execution, the sum recovered may, in the discretion of the court, be paid in whole or part to the spouse, or to the guardian, custodian or trustee of such minor child or children.” [N.J.S.A. 2C:62-1(c).]
CHILD SUPPORT IS A JUDGMENT BY OPERATION OF LAW
Child support is a judgment by operation of law the day it becomes due.
“Any payment or installment of an order for child support, or those portions of an order which are allocated for child support, whether ordered in this State or in another state, shall be fully enforceable and entitled as a judgment to full faith and credit and shall be a judgment by operation of law on and after the date it is due. For obligors who reside or own property in this State, such judgments, once docketed with the Clerk of the Superior Court, shall have the same force and effect, be enforced in the same manner and be subject to the same priorities as a civil money judgment entered by the court. The State shall accord full faith and credit to child support judgments or liens of other states, whether arising by operation of law or having been entered by a court or administrative agency, when a Title IV-D agency, a party, or other entity seeking to enforce such a judgment or lien in this State files a Notice of Interstate Lien, in the form prescribed by the federal Office of Child Support Enforcement, and supporting documents with the Clerk of the Superior Court.” [N.J.S.A. 2A:17-56.23a.]
ADDITIONAL RESOURCES (NEW JERSEY CHILD SUPPORT PROGRAM)
- NEW JERSEY CHILD SUPPORT PROGRAM – MAIN PAGE
- Child Support Payment Options
- Child Support Payment Coupons
- New Jersey Child Support Guidelines
- New Jersey Child Support QuickCalc
- Information on Passage of New Termination of Child Support Law (S-1046/A-2721)
- How to Apply for Child Support Services
- Locate County Child Support Offices
- Information for Custodial Parents
- Information for Noncustodial Parents
- View your Case Information
- New Jersey Child Support Program Handbook
- New Jersey Child Support Program Brochure
Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.
Focused. Accessible. Compassionate. Aggressive.
ASSOCIATIONS & MEMBERSHIPS:
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Young Lawyers Division
- Somerset County Family Law Practice Committee
- MENSA International
- New Jersey State Bar
- U.S. District Court for the District of New Jersey