NJSBA Family Law Section

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  • 1.  Agreements to Emancipate: Enforceable?

    Posted 06-16-2015 03:31 PM

    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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  • 2.  RE: Agreements to Emancipate: Enforceable?

    Posted 06-16-2015 04:47 PM

    I concur with Fall and Romanowski. A lot of content appears in MSAs concerning children that are not enforceable, but still find their way there.

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    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585
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  • 3.  RE: Agreements to Emancipate: Enforceable?

    Posted 06-18-2015 10:17 AM

    And Ordukaya v. Brown, 357 N.J. Super. 231, 239-41 (App. Div. 2003), also often cited for this proposition.

    You're not going to find contrary law.  The only way such an agreement would be "enforceable" is if it's tied in part and parcel of the rest of the agreement, and even then, its a round-about way of calling it enforceable ... But, for example, where there's a "waiver" of child support or a date-certain emancipation provision, you can say "The parties agree that this waiver of support is a material aspect of this Agreement. Should Husband seek to reopen the child support or emancipation aspects of this agreement and seek support, Wife retains the right to reopen the alimony and equitable distribution provisions, and shall immediately be entitled to a distribution of $10,000 from ...."  (etc - you get the idea).  There would still be a potential challgene on the grounds you've set forth, but I think that's the best protection that's out there.

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