NJSBA Family Law Section

  • 1.  New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-04-2017 05:25 PM
    Under the new child support statute- Can my client/father/payor file motion to emancipate his son at age 18 who has graduated high school and is not attending college or must my client wait until age 19 for him to automatically drop off? (Parties were not married and theres no Divorce Judgement that would alter emancipation date)......On another note, I have not received an email in  my inbox from this CommunityNet site in over one year now from my yahoo email account. I used to get them daily. I have entered the email address of this site in my contacts list as well as tried many other things. Can one of you techies help me? Thanks (PS I don't want to change my email address which I've had for close to15 years .) Thanks so much

    ------------------------------
    Christine Moriarty Brophy Esq
    Upper Saddle River NJ
    (201)785-1658
    ------------------------------


  • 2.  RE: New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-04-2017 05:42 PM
    Yes, the statute did not alter emancipation law, so if he has a viable argument as to emancipation, he should file the motion.



    Original Message


  • 3.  RE: New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-04-2017 10:49 PM
    Greg -
    <x-tab>        </x-tab>There was a long discussion on this in February - there's two threads, one of which is entitled "RE: Family Law : New Child Support Statute as it relates to special needs" and has a lot of entries, cases, legislative history, etc. One of the messages from it is below. The whole discussion is on the NJSBA website archives.
    <x-tab>        </x-tab>In sum - the new statute didn't change the rebuttable presumption of emancipation from age 18. It's an administrative tool only for for probation - they'll close out the case at 19, but you can always apply earlier. An adult is still an adult at age 18 and presumed to be self-supporting and not entitled to child support. That presumption is overcome if the child is still a f/t student or disabled. At age 23, support only continues under "exceptional circumstances."
    <x-tab>        </x-tab>I'm actually filing an appeal this week of a ruling where a judge held that 23 was meaningless in the face of standard PSA language that support terminated upon the completion of college, and the "child" -- age 23 1/2 -- is going into year 6 and 85% of the way toward a degree. I'll keep you posted, but the consensus is pretty clear on the issue.

    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    * * Please note our new address * *
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223




    The understanding I have, based on other discussions here and watching the legislation as it evolved, is that the new statute was not intended to... -posted to the "Family Law Section" community

    Family Law

    The understanding I have, based on other discussions here and watching the legislation as it evolved, is that the new statute was not intended to make any substantive change to the law on emancipation -- the "sphere of influence" test remains, with a presumption of emancipation and support termination at 18, rebutted by the "child" being a full-time student or disabled (with SSA determination as to disability creating a strong presumption).

    My understanding of the purpose of the statute is to address that New Jersey didn't have a presumptive end date for support orders to be terminated. As a result, child support orders would remain open on the AOC's computers until someone got an order closing them. NJ had an inordinate amount of cases where a "child" was now 25 or even 30 and, because no one got an order to terminate support, the case remained open and, most often, arrears were accruing (with no one pursuing them since the parties knew the child was emancipated). Every State's funding from the Federal government is heavily influenced by its collection rate. New Jersey's is relatively poor at #16 in spite of our being the 2nd or 3rd wealthiest state with the 3rd or 4th lowest unemployment (anyone interested in the actual numbers / ranking, see chart as Exhibit Y with Motion for Summary Judgment on dpdlaw.com/kavadas.htm#4 ). There are other reasons. New Jersey hasn't reviewed and updated its enforcement procedures and policies since 1998 - although there's a bill pending to do so that we should all support - www.dpdlaw.com/cs.htm . States with the most recent revisions and "more carrot, less stick" job-training and similar programs have the highest collection rates, but our being the only state that left orders open forever was one big one. This is why the AOC went all-out in supporting the bill.

    With the new statute, cases will administratively close when a child turns 19 unless the custodial parent gets an order continuing it. But it wasn't intended to change either the emancipation age nor the criteria for an over-18 child to remain entitled to support.

    There's a lot of confusion about this. In the Turkeimer v. Burke case that Jenny Berse posted, there's a footnote saying "[FN2] ...N.J.S.A. 2A:17-56.67 was enacted to create an automatic termination of support when a child reaches the age of nineteen." (I'm aware of the FN as this was my case on appeal and I'd read the opinion before today). I don't think that's correct either (but it was dicta; irrelevant to the Appellate decision). If it would help anyone working on the issue, the level of "disability" that Judge Flynn found to be insufficient to continue support ("social anxiety disorder" and an IEP) is set out in the briefs on the case -- www.dpdlaw.com/appeals.htm#Burke .

    Neither do I think its correct to say that support now continues to 19 rather than "over 18 and beyond the sphere of influence" as per the below case law. The NJ Supreme Court's opinion in     Newburgh v. Arrigo, 88 N.J. 529, 545 (1982) sets out 18 as the age a child is responsible for himself/herself. A lot of States have overturned laws requiring support beyond 18. At what point can a court no longer require support - what's the Constitutional limit? I'm about as far Left as anyone, but don't think a court can or should say "well, your neighbor (or parent or friend or whatever) needs some money to get by, so you'll be providing that." The Federal government (for purposes of continuing benefits for a "child") says a "child" is no longer a "child" when 18 and out of high school.

    Anyway, to answer the original question - I think the statute doesn't change the substantive law, just the procedure for closing cases. Over 18, the presumption of emancipation remains, and can be rebutted by (a) full time student status, or (b) disability, with SSA determination or lack thereof creating a strong presumption (btw, in another case I was involved in, the App Div just reversed a judge who under-appreciated the significance of an SSA determination when he said a party who had been declared disabled was also required to produce medical records or an expert - Corrello v. Corrello, scholar.google.com/... . App Div disagreed.).

    I hope someone is covering / discussing this issue at the symposium on Saturday.

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222



    TAMMY McGARRIGAN, Plaintiff-Respondent,
    v.
    STEPHEN McGARRIGAN, Defendant-Appellant.

    No. A-1930-14T1.
    Superior Court of New Jersey, Appellate Division.
    Submitted August 23, 2016.
    Decided January 3, 2017.
    . . .
    Our analysis begins with the principle that "parents are expected to support their children until they are emancipated, regardless of whether the children live with one, both, or neither parent." Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010) (quoting Burns v. Edwards, 367 N.J. Super. 29, 39 (App. Div. 2004)). Children are emancipated when they have moved "beyond the sphere of influence and responsibility exercised by a parent and obtain[] an independent status of [their] own." Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)). This fact-sensitive evaluation must include consideration of issues such as the "child's need, interests, and independent resources, the family's reasonable expectations, and the parties' financial ability, among other things." Dolce v. Dolce, 383 N.J. Super. 11, 18 (App. Div. 2006). See also Newburgh v. Arrigo, 88 N.J. 529, 545 (1982).

    When a child has reached the age of eighteen, the child is presumed to be emancipated, N.J.S.A. 9:17B-3, but the presumption is not conclusive. Newburgh, supra, 88 N.J. at 543. Consequently, if a child has reached age eighteen, the person seeking to have parental support continue has the burden of overcoming the statutory presumption. Llewelyn v. Shewchuk, 440 N.J. Super. 207, 216 (App. Div. 2015); Filippone, supra, 304 N.J. Super. at 308.

    A well-established instance defeating a request for emancipation and requiring continued support occurs when a custodial parent proves the child remains a full-time student. Limpert v. Limpert, 119 N.J. Super. 438, 442-43 (App. Div. 1972). When a dependent child is enrolled in a full-time educational program, child support must continue. See Gac v. Gac, 186 N.J. 535, 542 (2006) ("The Legislature and our courts have long recognized a child's need for higher education and that this need is a proper consideration in determining a parent's child support obligation"); Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (stating "while parents are not generally required to support a child over eighteen, his or her enrollment in a full-time educational program has been held to require continued support").


      Reply to Group Online   View Thread   Recommend   Forward  



    Original Message


  • 4.  RE: New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-04-2017 05:51 PM

    Christine, the rebuttable presumption is now 19, but you can always file to emancipate prior to turning 19. The issue is has the child moved beyond the sphere of influence and living independent; see Filipone v. Lee, 304 N.J. Suer. 301 (App. Div. 1997), Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995) and the recent Ricci v Ricci (Feb 2017) case. But if the adult child is still living at home with the other spouse, you'll have to wait for 19.

    Tom King

     

    Thomas R. King, Esq

    C: 973-750-8348
    www.njfamily.law - www.njdivorce.law

     

    This e-mail and any attachment(s) are private, confidential, may be legally privileged, and are intended only for the named recipient. If you are not the named recipient, please notify us by return e-mail and delete this message.

     

     




    Original Message


  • 5.  RE: New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-05-2017 09:03 AM
    ​Hi Christine.  The previous responses are correct that the new law is a child support termination law, not emancipation.  But, the obligation will not be terminated solely because the child has turned age 19; there are a couple of hurdles.  The system will send letters to the obligee prior to the child's 19th birthday advising that appropriate proofs must be submitted regarding the child's disability or fulltime college attendance.  If the appropriate proofs are not submitted in a timely fashion, then an order will be entered terminating the child support obligation as of the child's 19th birthday.  If there are arrears, the arrears payoff will be modified to the amount of the former child support obligation plus the existing arrears payback amount.  For example, if the child support obligation was $80 weekly plus $20 weekly on arrears, then the administrative order will terminate the child support obligation as of the child's 19th birthday and the arrears payback will be modified to $100 weekly.  If the obligee does submit proof that, for example, shows that the child is a fulltime college student who is expected to graduate at age 22, then the new termination date will be entered onto the system.  But, this administrative adjustment will only happen once.  This does not deprive either party from filing for post-judgment relief regarding emancipation or reinstating the child support obligation.

    ------------------------------
    Mitch Steinhart, Esq.
    Bergen County Board of Social Services
    Rochelle Park, NJ
    ------------------------------

    Original Message


  • 6.  RE: New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-05-2017 10:39 AM

    FYI; Judge Firko correctly enunciated that last week during an oral argument I was involved in.

     

     

    Bruce Evan Chase, Esq.

    Certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney

    Fellow of the American Academy of Matrimonial Lawyers

    Chase & Chase, Esqs.

    1 Atlantic Street

    Hackensack, NJ 07601

    201-343-6555

    201-343-2658 fax

     

    007b01ceca9d$4bca52f0$38481CA9@Garylaptop

     

    NOTICE:  YOU MUST NOT RELY UPON EMAILS FOR URGENT OR TIME SENSITIVE MESSAGES.  This e-mail communication and any attachments is sent by Chase & Chase, Esqs; it is privileged and confidential; it may include proprietary business information and trade secrets.  This e-mail communication and any attachments is protected from disclosure by the "attorney-client" privilege and other legal doctrine.  If this e-mail was sent to you in error, please notify me immediately by reply e-mail or by phone at 201-343-6555.  If you received this e-mail and any attachments because of an error destroy it immediately; you must not review it, disseminate it, distribute it, or copy it in any way; doing so is strictly prohibited by law. 

     

     




    Original Message


  • 7.  RE: New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-05-2017 03:33 PM
    Thanks so much for your input. I truly appreciate it.........Can one of you techies tell me how to get emails into my email inbox from this CommunityNet site? I have not received an email from Community Net in one year now. Since then, I have to log onto NJSBA and click Community Net to see postings (including today). I have added Community Net to my Yahoo contacts list, but does not do anything. Thus, I am missing out on a lot . Thanks.

    ------------------------------
    Christine Moriarty Brophy Esq
    Upper Saddle River NJ
    (201)785-1658
    ------------------------------

    Original Message


  • 8.  RE: New child support statute- Can payor file motion to emancipate at age 18 for high school graduate, no college? / How get emails from this CommunityNet site?

    Posted 10-05-2017 03:41 PM

     

    Write Barbara at:  [email protected] .  She's the State Bar Director of New Media and Promotions.  She's the one who always helps me, and God knows I need the help.

     

     

    Mark F. Saker, Esquire

    Attorney ID #271831971

    ______________________________

     

    image006.png@01D0F54B.3C02E780

     

    PLEASE NOTE OUR NEW ADDRESS

     

    Lomurro, Munson, Comer, Brown & Schottland, LLC

    Monmouth Executive Center

    4 Paragon Way, Suite 100

    Freehold, NJ, 07728

    image002.gif@01D02A87.76DA3D70[email protected]

    image003.gif@01D02A87.76DA3D70Main: 732-414-0300 X 140

    image003.gif@01D02A87.76DA3D70Direct: 732-414-0343
    image004.gif@01D02A87.76DA3D70Fax: 732-431-4043

      Cell:  732-915-5190

    W   www.lomurrolaw.com

     

    CONFIDENTIALITY NOTICE:  This Email and any attachments thereto are intended for the exclusive use of the addressee. The information contained herein may be privileged, confidential or otherwise exempt from disclosure by applicable laws, rules or regulations.  If you have received this Email in error and are not the intended recipient, you are hereby placed on notice that any use, distribution, copying or dissemination of this communication is strictly prohibited. If you have received this in error please notify the sender immediately at 732‑414-0300 and delete this Email and any attachments immediately.  Thank you for your anticipated cooperation.

     

     




    Original Message