family law

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).