Blawg

November 10, 2011 by Rebecca Esmi

Talking to the Sphinx: Government benefits and their effect on child support calculations

Talking to the Sphinx: Government benefits and its effect on child support calculation

The duty to support one’s child in NJ is undeniable, morally and legally. This obligation remains in place until the offspring is emancipated, defined as when the child has “moved beyond the sphere of influence” of his or her parents. See Filippone v. Lee, 304 N.J. Super. 301 (NJ App. Div. 1997), citing Bishop v. Bishop, 287 N.J. Super 593, 598 (NJ Ch. Div. 1995).

But families in which one or more offspring and/or even a parent has a substantial disability adds to the complexity of calculating the amount of child support due and payable. So how is child support calculated for a non-custodial parent (“NCP”) initially, or effective with Lepis upon a showing of changed circumstances, when the offspring receives government benefits?

Case law reveals several key principals. In Herd v. Herd, the court determined that state or federal benefits received by a dependent for whom the NCP pays should be subtracted from the amount of child support. Herd v. Herd, 307 N.J. Super. 501, 503 (NJ App. Div. 1998); Appendix IX-A to R. 5:6A at 2503-04 (2012). A late-breaking per curiam case – Goore v. Goore – decided by the New Jersey Appellate Division held that social security and other government-provided benefits (including benefits from state Division of Developmental Disabilities) are to be subtracted from the child support obligation. Goore v. Goore, No. A-3788-10T4, 1, 15 (N.J. App. Div. 2011).

November 10, 2011 by Rebecca Esmi

It’s in the numbers–or is it? Calculation of child support in NJ

It’s in the numbers, or is it? Calculation of child support in NJ

It’s the law in NJ that parents are obligated to pay child support for their offspring, according to their abilities. How does this work and how is the amount of child support calculated?

Fundamental to the process of calculating a NJ child support obligation is the Child Support Guidelines (“CSG”), or Appendix IX-A et seq. Key to the calculations are whether parenting is shared equally or not, and of course, the number and age of offspring. Typically the CSG applies when evaluating child support payments for offspring younger than or 17 years old. For offspring 18 or older (or having completed secondary education), the CSG directs the court to consider N.J.S.A. 2A:34-23 as well as case law, although the guidelines are may be used as a starting point for discussions.

So, what does N.J.S.A. 2A:34-23 reveal? The purpose of the statute is to determine the amount of child support the parent is obligated to pay. But it also addresses the period of time during which the duty is owed. The statute lists factors courts are to consider in determining answers to these two questions, although courts may also consider other unenumerated factors. The factors pertain to the circumstances surrounding the child as well as each parent and include: age and health of the child and parent; income, assets, and earning ability of the child; and finally, any other factors the court deems material.

November 2, 2011 by Rebecca Esmi

Emancipation and child support: what’s it all about

NJ Law requires that divorced or separated parents provide financial support for their offspring (See Appendix IX-A, Considerations in the use of Child Support Guidelines, provision 4). Importantly, that obligation persists until offspring are emancipated. Many parents assume that emancipation equates to reaching the age of majority, which in NJ is eighteen. See N.J.S.A. 9:17B-3, Minors, eighteen and older, deemed adult; exceptions. But this assumption is dead wrong. Age, while important, is just one of many factors considered in determining whether an offspring is emancipated.

The legal definition of emancipation is an amalgam of relevant court decisions. Emancipation is established when the offspring is independent, having matured “beyond the sphere of influence” and authority of the parents. See Filippone v. Lee, 304 N.J. Super. 301 (N.J. App. Div. 1997), citing Bishop v. Bishop, 287 N.J. Super. 593, 598 (N.J. Ch. Div. 1995). This boils down to one rule of thumb: each case is unique to be decided – at the court’s discretion – on the facts and circumstances.

Applying this rule to the question of whether a parent is obligated to pay child support when the offspring is attending an institution of higher education yields some interesting results. First, NJ law establishes the general principal that attending college or university does not relieve a parent from support obligations. See Limpert v. Limpert, 199 N.J. Super. 607 (N.J. App. Div. 1972). Contrast this with attendance at West Point – where upon enrollment the offspring is considered to be on active military duty – which confers emancipated status on the attendee. See Bishop v. Bishop, 287 N.J. Super. 593 (N.J. Ch. Div. 1995). We may get another result when the original child support order was issued by a court of a state that deems emancipation to occur at the age of majority, like PA. In such a case, where the offspring has attained majority, a parent may not have to foot the bill for higher education. See Marshak v. Weser, 390 Super. 387 (N.J. App. Div. 2007).

And remember, some offspring may never be emancipated, such as an individual with a disability. See Kruvant v. Kruvant, 100 N.J. Super. 107 (N.J. App. Div. 1968).

October 31, 2011 by Rebecca Esmi

How bullet-proof is your employee manual?

Did you know a NJ business can be vulnerable to wrongful discharge claims based upon what its employee manual says – or doesn’t say?

Employment in New Jersey defaults to “at will” meaning that an employee may generally be terminated anytime, for any reason – or lack thereof. There are important exceptions, which is where the employee manual comes in. Woolley is a watershed case on this topic. The manual in Woolley was flawed because while it contained a multitude of provisions, it omitted a provision on termination without cause. (See Woolley v. Hoffmann-LaRoche, Inc., 99 N.J. 284, 290 (N.J. 1985), judgment modified 101 N.J. 10 (N.J. 1985)).

The following rules-of-thumb can be cherry-picked from Woolley so as to make an employee manual as bullet-proof as possible:

Read it through employee’s eyes. If your manual is disseminated to a substantial portion of your workforce, you will want to read each provision from the perspective of the employee. This means you should ask yourself what employees would reasonably expect each provision to mean. But your analysis should not stop there. You will need to dig deeper and identify and edit those provisions that represented an offer or employment terms and conditions.

Disclaimer. Always include a disclaimer that the manual does not create legally binding obligations. Leaving out this provision can expose the employer as courts have held that – absent the disclaimer – a manual provision such as a stated termination procedure is legally enforceable against the employer. Be sure to set-off the disclaimer, giving it the attention it warrants, and prominently display it. Additionally, it must clearly inform employees the employer can terminate employment “with or without cause.”

So, if an employee manual is a “must have” for your business, management will need to proceed with caution — both as to what it says as well as where it is silent.

October 31, 2011 by Rebecca Esmi

Is your business in compliance with CEPA?

CEPA, or the Conscientious Employee Protection Act, sets the bar high for New Jersey businesses. CEPA is a powerful New Jersey law that protects whistle-blower employees from employer retaliation. Employers charged with a CEPA violation face extensive potential liability including punitive damages and those for emotional distress, including:

Reinstatement of the whistle-blower on par with former position;
All back-pay;
Reasonable costs and attorneys fees;
Civil fines of $10,000.00 for one conviction; if more than one, $20,000.00; and
Punitive damages, the greater of $350,000.00 or five times the compensatory award.

Here is a description of a case in point. The threshold requirement is that the employee believes the employer has violated a law, rule, or regulation or public policy as to health, safety or welfare. Courts do not expect the employee to actually know the law, rule, or regulations, but neither does it allow the supposed offense to be trivial. Next the employee must have reported this to his/her supervisor or to a public body. Note that reporting the conduct to one’s attorney suffices. Rather than respond in a positive way to the notification, the employer then retaliates against the whistle-blower. In order to be characterized as retaliatory, an act must cause “lasting prejudice”. Beware: lateral transfers that carry neither reduction in pay or grade can qualify as retaliation.

There are a number of regulatory procedures with which employers are required to comply, in order to remain within the law. The New Jersey Commissioner of Labor and Workforce Development requires three key notice-requirements of employers. First, each employer must provide the name of the person designated as its agent to receive CEPA notices. Second, employers must prominently post at all times in an appropriate place(s) a notice of CEPA protections. Finally, the third requirement is that employers must distribute to each and every employee an annual notice of CEPA protections. See N.J.S.A. 34:19-7 for details.