New Jersey and the Emancipated Child: Changes Are on the Way

The parties in Harrington were divorced in 2012. At that time, they had one daughter in college and two in high school. Under the terms of their agreement, the father was to pay the mother $240 per week in unallocated child support. In other words, the $240 was not designated as representing, say, $80 per child; instead the full $240 was simply treated as “child support.” The parties also agreed that each would contribute a reasonable amount toward the children's college expenses. The father thereafter paid the required child support, and neither party complained about the college expenses.

In September 2014, the parties agreed that the two eldest daughters would be emancipated, and they confirmed it legally by obtaining two orders stating such. However, neither party asked at that time for modifications to the father's child support obligation, and they did not exchange financial information. From September 2014 onward, the father continued to pay the $240 obligation, in full.

Then, on Feb. 11, 2016, the father filed a motion to retroactively allocate child support to $80 per week, per child, going back to September 2014 when the two eldest daughters were emancipated. That would mean that he only should have paid $80 per week after that date. He also asked to have the youngest child declared emancipated as of July 1, 2015 ' the month after she graduated from high school with no intention of entering college. The mother agreed to this last, but objected to a retroactive order allocating child support from September 2014 onward. She argued that she had accepted the full $240 per week in good faith in order to maintain the home for the youngest child as she finished her last year of high school. She also pointed out that the father had waited a year and a half to complain of paying that amount, even though he could have said something about it in September 2014.

The Judge's Ruling

Judge Jones determined that when there are multiple children involved, there is unallocated child support and one or more of the children are emancipated while one or more are not, the courts may, in their discretion, retroactively reduce the child support obligation if that result is the more equitable. In making a decision whether to do so or not, courts should consider a number of issues, including: how much time has passed since the obligor could have asked for a reduction; the reasons for any delay; whether the payor spouse continued to pay as ordered; whether the custodial parent's fraud or misrepresentation lead to the delay in seeking a reduction (and, if so, whether the non-custodial parent could have learned the truth with little effort); and whether the custodial parent accepted the unallocated child support as an extra amount rather than seeking amounts the remaining child(ren) might be entitled to, such as college expenses. Also to be considered is the hardship that returning the extra funds would place on the custodial parent who spent that money on the unemancipted child(ren) in good faith.

Judge Jones noted that in the case at bar, the father had offered no explanation for the delay in seeking a reduction in child support after his two older daughters were emancipated, nor had he alleged that the mother or children had hidden any facts from him that would have led him to seek a child support reduction had he known those facts. Still, the court deemed it necessary to conduct a hearing on the issues, at which time a final decision as to retroactive emancipation will be made.

The New Law

The New Jersey child support law that will go into effect on Feb. 1, 2017, primarily does two things. First, it creates a presumption that, absent a contrary court order, child support obligations will stop automatically when a child reaches the age of 19, marries, joins the military or dies. C.2A:17-56.67. And it shifts the burden from the payor to the payee parent: Now the payee must ask the court for an extension of child support past the presumptive termination date, instead of the payor having to ask the court to terminate child support. C.2A:17-56.67b (1).

In order to seek extension of child support for a child over 18, the custodial parent can apply to the court ' but only prior to the child's 19th birthday ' to up the cut-off age limit to as much as 23 years. C.2A:17-56.67 b(1). The court can then, under the terms of the new law, extend child support if the child: 1) is still in high school; 2) is attending some type of post-secondary school on a full-time basis; or 3) is disabled prior to reaching the age of 19 and remains so. Id.

Interestingly, under the new law, the support obligation for a child who is in an out-of-home placement through the Division of Child Protection and Permanency in the Department of Children and Families will not automatically end when the child turns 19. C.2A:17-56.67 1a (3). Apparently, custodial parents can shoulder their own the costs of supporting young adults, but the State cannot.

When the new law goes into effect in February 2017, it will affect not only child support obligations going forward, but “all child support orders issued [in New Jersey] prior to, on, or after the effective date.” C.2A:17-56.75 10. However, support orders issued by sister states and foreign jurisdictions will not be affected by the new law. C.2A:17-56.70 4.

Would the New Law Have Affected the Harringtons?

If the Harringtons' agreement had allocated support in specified amounts to each child, the child support obligation for each daughter would have ended under the new law when that child turned 19, so long as the child support order did not designate some other time. Still, even though the law says that the obligation for that one child would end while that for the unemancipated children would remain in place, it also states that one of the parties would have to file an application with the court to have the amount officially adjusted. C.2A:17-56.68b. Thus, the systems for lowering allocated and unallocated child support appear to be essentially the same under New Jersey's new law, with the only difference being that an allocated support obligation would be assumed ended, with the court-order serving only as a rubber stamp.

Meanwhile, an unallocated support obligation, such as the Harringtons', would remain in effect ' as if one of the children had not been emancipated ' unless one of the parents moved the court for an adjustment to reflect the reduction in the number of dependent children (C.2A:17-56.68a). But, in either case, it appears that someone would have to make an application for adjustment, and the court would have to get involved.

So Mr. Harrington, even if working under the law that will go in effect in February 2017, would have had to go through the court if he wanted to get a reduction in unallocated child support based on the emancipation of his two eldest daughters in 2014. He might not have had to do so with regard to the youngest in 2015, so long as she had reached 19 years old, because she was the only remaining dependent child. However, considering that he wants to have his youngest daughter declared emancipated the month following her June 2015 high school graduation ' when she was, presumably, just 17 or 18 years old ' the new law probably would not have helped him avoid the courthouse. And, as for recoupment of the full child support obligation he paid after the two older girls were emancipated ' an amount that the court, under the new law, could have reduced immediately upon their emancipation if Mr. Harrington had made an application ' the new law is silent.

Janice G. Inman, Esq., is Editor-in-Chief of this newsletter.