Child support is a critical issue in family law, and it is often hotly-contested between litigants.
In this article, we will discuss how child support is set, enforced, modified, and terminated. We caution readers, however, that judges are vested with broad discretion in Divorce and Family Law matters. The general principles below are just that: general principles, and they may not be applicable to your case. Nothing in this article should be construed as legal advice, and we require our readers to refrain from acting or failing to act based on the information contained herein. If you are involved in a child support proceeding, we strongly encourage you to retain counsel. If not, you can and should conduct robust independent research concerning your rights and obligations.
With that out of the way…
Child Support Generally
An unemancipated child has the right to receive support from both parents, and child support is a continuous duty of both parents. Unlike alimony, parents cannot privately contract to terminate their duty to support a child. It is fundamental that the right to child support belongs solely to the child and cannot be waived by the custodial parent. Even an explicit waiver agreement cannot vitiate a child’s right to support. The responsibility to support runs from parent to child, not parent to parent. Therefore, when the custodial parent files an action with respect to child support, it is on behalf of the child and not as to that parent’s own right. Children have the right to a standard of living, care, and maintenance commensurate with collective incomes and the best efforts of their parents. Even non-custodial parents whose earnings are significantly low must pay some amount towards the obligation to establish the principle of the parent’s support obligation and to provide a basis for an upward modification should the obligor’s income increase in the future.
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, parenting time 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 miscellaneous items. Specific items included in each category are listed in the Court Rules. The fact that a family does not incur a specific expense in a consumption category is not a basis for a deviation from the child support guidelines. Tuition for children (i.e., for private, parochial, or trade schools, or other secondary schools, or post-secondary education) are not included in an award of child support under the Guidelines and may be treated as a supplemental expense. Other supplemental expenses that may be added to a Guidelines award include childcare expenses, health insurance for the child, predictable and recurring unreimbursed healthcare expenses in excess of $250 per child per year, and other predictable and recurring court-approved expenses.
The Court may deviate from the Guidelines under exceptional circumstances, including situations involving the following factors:
(1) Equitable distribution of property;
(2) Income taxes;
(3) Fixed direct payments (e.g., mortgage payments);
(4) Unreimbursed medical/dental expenses for either parent;
(5) Educational expenses for children (i.e., for private, parochial, or trade schools, or other secondary schools, or post-secondary education);
(6) Educational expenses for either parent to improve earning capacity;
(7) Single family units (i.e., one household) having more than six children;
(8) Cases involving the voluntary placement of children in foster care;
(9) Special needs of gifted or disabled children;
(10) Ages of the children;
(11) Hidden costs of caring for children such as reduced income, decreased career opportunities, loss of time to shop economically, or loss of savings;
(12) Extraordinarily high income for a child (e.g., actors, trusts);
(13) Substantiated financial obligations for elder care that existed before the filing of the support action; and
(14) The tax advantages of paying for a child’s health insurance; and
(15) One obligor owing support to more than one family (e.g., multiple prior support orders).
A second procedure applies in cases where the parties’ combined net income exceeds the maximum amount permissible under the Guidelines (currently $187,200 per year). The Court must apply the Guidelines up to the maximum and then supplement the Guidelines award with a discretionary amount based on the remaining family income and the factors set forth by statute:
(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.
In calculating child support, the Court may consider potential income to an unemployed or underemployed parent regardless of whether that parent actually receives the imputed 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 should impute income to that parent according to the following priorities:
(1) 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);
(2) 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
(3) If a NJDOL wage or benefit record is not available, impute income based on the fulltime employment (40 hours) at the New Jersey minimum wage ($8.25 per hour).
Enforcing Child Support
In New Jersey, the County Probation Departments are 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). Even if the parties have chosen to direct pay support rather than pay through the Probation Department, child support not presently administered by the Probation Department should be made so on application to the Court unless the other party shows good cause to the contrary. The “good cause” exception should be narrowly construed so as to include only those who demonstrate exceptional circumstances. 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.
On finding that a party has violated an alimony or child support order the court may grant any of the following non-exhaustive list of remedies, either singly or in combination:
(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.
Modifying Child Support
The standard for a change in the number 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. 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:
(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.
When children are involved, an increase in their needs – whether occasioned by maturation, the rising cost of living, or more unusual events – has been held to justify an increase in support by a financially able parent. Further, their emancipation and employment may warrant a reduction in their support. It is, therefore, up to the moving party to make a prima facie 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. New Jersey Court Rules require that when a motion is brought for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified must be appended to the pleading filed in support of the motion. When a motion or cross-motion is brought for the entry or modification of an order or judgment for alimony or child support based on changed circumstances, the pleading filed in support of the motion must have appended to it a copy of the prior case information statement or statements filed before entry of the order or judgment sought to be modified and a copy of a current case information statement. The pleading filed in opposition to the entry of such an order shall have appended to it a copy of all prior case information statements. Further, Courts have held that the requirement that both parties update their financial disclosures prior to the recalculation of child support must be enforced. It is not just “window dressing.”
Once the above steps have been completed, the court must decide whether to hold a plenary hearing (i.e., a trial concerning the modification of support). A party must clearly demonstrate the existence of a genuine issue as to a material fact before a plenary 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.
A final, and critical, consideration is that the laws in New Jersey affirmatively prevent retroactive modification of child support beyond the date on which motion was filed, except in very limited circumstances including emancipation, death, or any other event that automatically terminates child support. Notably, the child moving from one parent’s home to the other’s does not automatically terminate support.
Termination of Child Support (a.k.a. Emancipation)
In general, emancipation is the act by which a parent relinquishes the right to custody and is no longer required to pay child support. 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. Rather, the determination is fact-sensitive, and the Court must examine the circumstances of each individual case.
The age of majority does, however, provide prima facie proof that the child is emancipated. 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. To decide whether emancipation is the proper course, the court must determine whether the child has moved beyond the sphere of influence and responsibility exercised by a parent and obtained an independent status on his or her own.
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. When a declaration of emancipation is entered, all a Judge has before him are the facts as they exist at that time, and the Court should not emancipate a child based on events that have not yet occurred.
When emancipation concerns a child attending college, the Courts have held that failure of an individual to pass his college courses, reinforced by his failure to return the next semester virtually mandated the conclusion that the child was emancipated. Courts have further held that the duty to support a child’s college education does not require that emancipation be deferred when a child is unable to perform adequately in his academic program.