I'm hoping this listserv will help resolve an issue for me. Nearly every MSA I come across includes a provision defining emancipation events. In my admittedly limited understanding, such provisions are only enforceable to the extent that they extend rather than terminate the obligation of support. Said differently, an agreement to emancipate an otherwise unemancipated child is unenforceable.
This position seems supported by the case law:
Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993) (citations omitted): "[T]he right to support belongs to the child. ... For this reason and because of the State's parens patriae interest in assuring a proper level of support for all children, the right to child support cannot be waived by the custodial parent. Whether or not defendant has a continuing obligation to support the child must be based upon an evaluation of the child's needs and interests and not upon the conduct of the plaintiff. Each parent has a responsibility to share the costs of providing for the child while she remains unemancipated."
Patetta v. Patetta, 358 N.J. Super. 90, 94 (App. Div. 2003) (citations omitted): "[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) (citations omitted): "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."
Three of the four treatises on family law in New Jersey arrive at similar conclusions (the fourth, New Jersey Family Law by Grossman and Cheifetz, does not address the issue):
Fall and Romanowski write in Relationships Involving Children that "absent extraordinary circumstances, an agreement that reduces or eliminates the child's right to receive support that he or she otherwise would be entitled to in the absence of such an agreement generally are not enforceable and are therefore subject to attack, as the right to support belongs to the child and cannot be bargained away by a parent."
Skoloff, Cutler, and Weinberger, et al., write in New Jersey Family Law Practice, "Many times the parties, through the urging of their attorneys, will seek to define emancipation in their agreement. While the wisdom of this exercise is debatable, it would seem that any definition which is more constrictive of that defined in the case law might be deemed a nonbinding limitation on the court's parens patriae jurisdiction."
Winters and Baldwin write in Family Law and Practice, "Generally, a voluntary agreement by or between parents to terminate a viable duty of support is invalid and unenforceable at law."
I believe it is accurate to state that any MSA provision attempting to define emancipation in a manner more restrictive than the "sphere of influence" test is unenforceable. If there is a coherent argument to the contrary, I would like to hear it. If not, why do we continue to draft and to seek enforcement of these provisions?
I would appreciate any feedback, whether public or private, and I apologize for clogging your inbox with this ridiculously long post.
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Andrew Shaw Esq.
Franklin Park NJ
(201)400-6882
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