Given that parents may only set a definition for emancipation that expands rather than restricts the obligation to provide child support, it seems best to leave the issue alone. See, e.g., Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) ("[W]e hold the parental duty to support a child may not be waived or terminated by a property settlement agreement."); Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006) ("Of course, a parent cannot bargain away a child's right to support because the right to support belongs to the child, not the parent, and no agreement between the parents can deprive a court of its authority to require that adequate provision be made for dependent children. On the other hand, however, nothing in the law, and no principle of public policy prevents a parent from freely undertaking to support a child beyond the presumptive legal limits of parental responsibility.").
As a result, I prefer to include something like, "The child's emancipation shall be determined in accordance with New Jersey law as it exists when the application to emancipate is made."
For what it's worth, the Appellate Division in Biser v. Levine was dealing with the an arbitration award. In that case, the parties had vested the arbitrator with authority to decide the allocation of graduate school expenses. The order was subsequently vacated by the Superior Court, and the Appellate Division reinstated, finding insufficient grounds to set aside the result of the arbitration. Indeed, the Court held that a mistake of law was normally insufficient to set aside an arbitration award: "Absent an agreement by the parties to an expanded standard of judicial review, courts must apply the standard of judicial review normally applicable to private arbitration, under which a court may 'not vacate an award even though it might be based on a mistake of law.'" I believe the Court would have arrived at a very different result if the matter had been originally decided in the Superior Court. Still, probably a good practice
That being said, the new child support law does not deal solely with presumptions. It also clearly states that "the obligation to pay child support … shall not extend beyond the date the child reaches 23 years of age." A more interesting question is probably this: Does child support include college costs? The Appellate Division has contradicted itself on that point over time.
"Child support and contribution to college expenses are two discrete yet related obligations imposed on parents." Hudson v. Hudson, 315 N.J. Super. 577 (App. Div. 1998).
"We view an imposed college contribution as simply another form of child support." Raynor v. Raynor, 319 N.J. Super. 591 (App. Div. 1999).
"The payment of college costs differs from the payment of child support for a college student." Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012).
It will be fun to see the question resolved. My inclination is to believe the Jacoby rationale will prevail, although I personally prefer the outcome in Raynor.
Very truly yours,
Andrew
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ANDREW M. SHAW, ESQ.
Divorce & Family Law Attorney
DeTommaso Law Group, LLC
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