Child Support

Child support is a critical issue in family law, and it is often the most important issue to those going through a divorce. In this portion of the DeTommaso Law Group’s New Jersey Divorce Guide , we will discuss how child support is set, enforced, modified, and terminated, as well as the costs of a child’s college education.

A Child’s Rights to Financial Support

In New Jersey, children have the independent right to receive financial support from both parents. The responsibility to support runs from parent to child, not parent to parent. As a result, unlike alimony, parents cannot agree to terminate their duty to support a child. Child support does not belong to the parents in the first place, and every child has the right to a reasonable amount of support given his or her parents’ combined incomes and best efforts. Even if the parents explicitly agree to waive child support, the Court will not consider such an agreement enforceable. Even parents who earn very little must pay some amount toward child support.

Setting Child Support

In the State of New Jersey, an initial award of child support can be calculated in two ways: First, and by far the most often, child support is calculated under the New Jersey Child Support Guidelines. The Guidelines are a formula applied to the parties’ incomes and financial circumstances, custody arrangements, and number of children to produce an award based on the average amount spent on children throughout the State.

Child support awards calculated under the Guidelines include the child’s share of expenses for housing, food, clothing, transportation, entertainment, unreimbursed health care up to and including $250 per child per year, and other miscellaneous items. Specific items included in each category are listed in the Court Rules. However, arguably the most important exclusion from a Guidelines-based award is tuition, which may be treated as a supplemental expense. Other supplemental expenses that may be added to a Guidelines award include daycare expenses, health insurance for the child, and other predictable and recurring court-approved expenses.

The Court is allowed to set an award of child support that is higher or lower than the Guidelines figure, but there must be some exceptional circumstances. The Court Rules recognize the following exceptional circumstances:

  • Equitable distribution of property;
  • Income taxes;
  • Fixed direct payments (e.g., mortgage payments);
  • Unreimbursed medical/dental expenses for either parent;
  • Educational expenses for children (i.e., for private, parochial, or trade schools, or other secondary schools, or post-secondary education);
  • Educational expenses for either parent to improve earning capacity;
  • Single family units (i.e., one household) having more than six children;
  • Cases involving the voluntary placement of children in foster care;
  • Special needs of gifted or disabled children;
  • Ages of the children;
  • Hidden costs of caring for children such as reduced income, decreased career opportunities, loss of time to shop economically, or loss of savings;
  • Extraordinarily high income for a child (e.g., actors, trusts);
  • Substantiated financial obligations for elder care that existed before the filing of the support action; and
  • The tax advantages of paying for a child’s health insurance; and
  • One obligor owing support to more than one family (e.g., multiple prior support orders).

In high-income cases, a second procedure applies. If the combined net income of both parents exceeds the maximum amount allowed under the Guidelines ($187,200 per year as of 2014), the Court is required to apply the Guidelines up to the maximum and then supplement the Guidelines-based award based on the following the factors:

  • 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.

In calculating child support, the Court may consider potential income to an unemployed or underemployed parent regardless of whether that parent actually receives that income. This is commonly referred to as “imputed income.” If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it will probably impute income to that parent, and there are a large number of cases and Court Rules concerning the proper procedure for imputation of income.

Enforcing Child Support

In New Jersey, the Probation Department is authorized to collect and monitor child support. In fact, enforcement and collection of child support by the Probation Department via wage garnishment is automatic (although the parties may agree otherwise). The benefits to automatic enforcement are innumerable and include saving substantial sums that would otherwise be spent on attorneys if the opposing party defaults on his or her obligation in the future. Moreover, the Probation Department creates an authoritative ledger of child support paid and received, and it is less hesitant than certain judges to issue severe remedies like warrants for arrest and incarceration.

In addition to enforcement through Probation, the New Jersey Court Rules set forth a list of common remedies imposed when a Court finds that either parent has violated a child support order:

  1. Fixing the amount of arrearages and entering a judgment upon which interest accrues;
  2. Requiring payment of arrearages on a periodic basis;
  3. Suspension of an occupational license or driver’s license consistent with law;
  4. Economic sanctions;
  5. Participation by the party in violation of the order in an approved community service program;
  6. Incarceration, with or without work release;
  7. Issuance of a warrant to be executed upon the further violation of the judgment or order; and
  8. Any other appropriate equitable remedy.

This list is not complete, however. The Court can order any relief that it deems appropriate and is limited only by its imagination and the concerns of fairness and equity.

Readers should also be aware that certain punishments are automatic, and even a state judge cannot undo them. For example, when child support arrears (i.e., unpaid amounts) payable through Probation have grown to over $2,500, the Probation Department is required by law to report those arrears to the federal government, who may either revoke or refuse to renew the non-paying parent’s passport. As this is a matter of federal law, New Jersey Courts have no power to undo that revocation or refusal. The matter must be pursued through the administrative process or, perhaps, in federal court.

Modifying Child Support

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. The 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. However, Courts have consistently rejected requests for modification based on circumstances which are only temporary, including unemployment, or which are expected but have not yet occurred.

Recognized examples of changed circumstances include:

  • An increase in the cost of living;
  • Increase or decrease in the supporting spouse’s income;
  • Illness, disability or infirmity arising after the original judgment;
  • The dependent spouse’s loss of a house or apartment;
  • The dependent spouse’s cohabitation with another;
  • Subsequent employment by the dependent spouse; and
  • Changes in federal income tax law.

First, i is up to the requesting party to make a prima facie (translation: at first sight) case that changed circumstances have occurred. 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.

There are further requirements in an application for a modification of support. For example, New Jersey Court Rules require that requests to modify support must include a copy of the order that a party is requesting be modified. In addition, the request must be accompanied by the case information statement preceding entry of the order and an updated case information statement. The purpose of this rule is to permit the Court to make the mandatory analysis. That is, whether circumstances have changed since entry of the order that might justify some modification.

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 of material fact” before a hearing becomes necessary, and those seeking modification should be aware of the fact that Courts are swamped with requests to modify support (many of which are repetitive) and therefore are reluctant to order a time-consuming hearing in most cases. Another important consideration is that “conclusory allegations” (i.e., general statements without any facts or proof to support them) will be disregarded. Consequently, keep in mind that Courts like to deal in proofs. Come ready with as much documentation of your claims as possible.

A final, and critical, consideration is that the laws in New Jersey prevent retroactive modification of child support beyond the date on which a motion was filed, except in very limited circumstances including emancipation, death, and others event that automatically terminates child support. Notably, the child moving from one parent’s home to the other’s does not automatically terminate support. At least one appellate court, however, has held that the anti-retroactive law only forbids retroactive decreases in support, and may still allow retroactive increases.

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