Potential Pitfalls and Open Issues Related to the New Child Support Termination Statute

The new Child Support Termination Statute (N.J.S.A. 2A:17-56.67) was signed in to law by Governor Christie on January 19, 2016 and went in to effect on February 1, 2017.  This statute implements a presumption that child support should terminate once a child reaches age 19, unless certain factors are met.  Furthermore, under no circumstances can child support continue beyond the age of 23.  However, this statute does not address emancipation (a child support obligation through the Probation Department may terminate but the parents may have a continuing duty to provide additional financial maintenance for a child who is not emancipated, regardless of their age, under certain circumstances).   The implementation of the statute has been confusing and unclear to a lot of people (both litigants and attorneys).  Many do not realize that a termination of child support pursuant to this statute does not automatically alleviate a parent’s financial obligations to the child.  There are many situations in which a parent may be surprised to learn that they have a continued obligation to provide financial maintenance for a child despite the fact that the child support obligation had been terminated long ago.  As will be explained below, in some of these situations, the parent may be unable to rectify the situation and may have ended up paying significantly more support than they should have.  On the other side of the coin, a custodial parent may forego financial benefits they (or their child(ren)) would otherwise be entitled to receive by simply accepting the termination of child support pursuant to this statute.

Our previous post provided a summary and overview of the statute.

 

Open Issues/Potential Pitfalls

Written Request Form

 

The written request form sent by the Probation Department requires the custodial parent to propose a new child support termination date if they are seeking to continue child support for a child beyond age 19.  This form is submitted to the parties once and, as of this writing, there do not appear to be mechanisms in place to administratively update or modify the form due to a subsequent change in circumstances (such as the child taking longer than expected to graduate from college).  Therefore, you should speak to an attorney about your options when completing this form (ex. Utilizing the child’s 23rd birthday, date of graduation after 4 years of college, date of graduation after 5 years of college, some other triggering event).  If a change in circumstances does occur that requires a party to update the proposed child support termination date, as of the date of this writing, the party seeking to modify the court order will have to file an application with the court.

 

Since the noncustodial parent is not entitled to see the written request form and supporting documentation submitted by the custodial parent to the Probation Department to continue child support beyond age 19, the noncustodial parent should consult with an attorney regarding their options when their child is approaching age 19.  This could include reaching out to the custodial parent to request a copy of the proofs submitted to the Probation Department, filing a motion to obtain such proofs, filing a motion to emancipate the child (if appropriate), etc.

 

The written request form promulgated by the AOC and submitted to the parties by the Probation Department does not permit a noncustodial parent from waiving the automatic termination requirements.  Presumably, to avoid this issue, the parties could enter in to a Consent Order setting forth a new proposed termination date if they both agree.  However, either party may have concerns about stipulating to a proposed child support termination date in the future.

 

Other issues

 

Since the statute does not address emancipation, the termination of child support for a child does not mean the child is emancipated.  Therefore, a parental duty to the child will continue notwithstanding the practical termination of child support.  If the child support has terminated pursuant to this statute, the noncustodial parent will still have to file a motion with the Court (or enter in to a consent order with the custodial parent) to emancipate the child.  If the child is not emancipated by court order, the noncustodial parent may be liable for ongoing financial obligations for the child in the future.  These obligations could include payment of expenses (college expenses, car expenses, cell phones, credit cards, medical expenses, etc.) or other ongoing financial maintenance for the child.

 

Furthermore, in cases where there are two or more children with an unallocated child support obligation, the termination of child support for one child will not cause a recalculation of child support for the remaining child(ren).  If the child for whom child support has terminated is not also emancipated at that date, the noncustodial parent will most likely be prevented from recalculating child support as of the date of the child support termination.  This is due to New Jersey’s anti-retroactivity statute for child support (N.J.S.A. 2A:17-56.23a) which prohibits a court from retroactively modifying a child support obligation except to the filing date of a motion or 45 days prior with written notice.  While emancipation does not trigger this statute (meaning a child support obligation for unemancipated children can be recalculated to the date of the emancipated child’s emancipation), there are many possible scenarios where a child is not emancipated pursuant to New Jersey case law but whose child support obligation is terminated pursuant to the statute.  An obvious example of this would be where the parties have multiple children, one of whom is over the age of 19 and has a mental or physical disability which renders them unable to work or go to school but without having a governmental determination confirming the disability.  Under the statute the child support would terminate, but the unallocated child support for the remaining child(ren) would remain the same.  Under the caselaw, in most cases, that child would not be deemed to be emancipated.  Therefore, if the noncustodial parent waits to recalculate the child support obligation for the remaining child(ren) who are not affected by the statute, the noncustodial parent would only be eligible to receive a recalculation as of the date they filed the motion with the Court (or 45 days earlier if they provide written notice to the other party).  If the noncustodial parent does not act quickly, they will probably be precluded from reducing their child support for the remaining child(ren) and will have paid significantly more child support than they would have otherwise been required had they filed a motion immediately.

 

While a vast majority of cases where the child support terminates by operation of law pursuant to the statute will coincide with the child’s emancipation (remember, a separate court order will be required to emancipate the child), there are some situations, as alluded to above, where the child support may terminate but the child will not be emancipated.  If a child is still within the “sphere of influence” of the parents, but no longer qualifies for child support under the statute (ex. Not a full-time student, not determined by a state or federal governmental agency to be disabled, etc.), they will fall in to this child support “limbo.”  In these situations, the custodial parent will have to file an application with the Court to argue “exceptional circumstances” exist such that a continued financial obligation should be imposed on the noncustodial parent.  While the court will be guided by existing case law, this is still new territory and there is presently no guidance as to whether the courts will utilize a higher burden for imposing financial obligations on parents under “exceptional circumstances” than they would prior to the statute being implemented.

 

Remember, there is no requirement that the custodial parent update the Probation Department based on changed circumstances related to the child at issue (although they have an obligation to notify the other party and, in some cases, the court).  This will inevitably result in situations in which the child is no longer eligible for child support, but the Probation Department will continue collection and enforcement until the date of child support termination set forth in the Court Order.  Probation only sends notices prior to the child reaching the age of 19; after they receive confirmation that the child support should continue to a proposed date, they will continue the enforcement and collection through that date unless there is a Court Order stating otherwise.

 

For an excellent overview of the statute and an analysis of how a child over the age of twenty-three may make an application for ongoing financial maintenance from a parent, read Judge Jones’ decision J.C. v. A.C. (FM-15-967-04-N) from October 7, 2016.

 

As you can see, this topic is brand new and there is limited case law available to guide litigants, attorneys, and judges.  We highly recommend you schedule a consultation with a family law attorney to discuss your options.  Whether you are the custodial or noncustodial parent, simply filling out the form and waiting for the ensuing Order is often not enough to protect your (or your children’s) rights.

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