NJSBA Family Law Section

White v. White, 313 N.J. 637 (Ch. Div. 1998) :

At the time of the divorce trial in 1995, Brian was on active service in the United States Navy and, unlike his sister, he was deemed emancipated.   Since Brian now seeks a court order declaring that he is unemancipated, he has the burden of proving that he is entitled to the relief he requests.   In view of Brian's legal status, his father, Mr. White, is not authorized to act on his behalf.   Therefore, Brian's request to intervene so that he may independently pursue his claims is granted.

There is no doubt that from 1992 through 1996 Brian was emancipated.  Slep v. Slep, 43 N.J.Super. 538, 543, 129 A.2d 317 (Ch.Div.1957).   While serving in the Navy, Brian moved beyond the sphere of influence and responsibility exercised by a parent and obtained an independent, self-supporting status of his own.  Bishop v. Bishop, 287 N.J.Super. 593, 598, 671 A.2d 644 (Ch.Div.1995).   In fact, Brian was probably emancipated sometime in 1991 after he discontinued his studies at Seton Hall University and Morris County Community College.   Nevertheless, Brian has recently demonstrated an ability to successfully pursue a college education.   Such perseverance is to be commended and encouraged.   As noted by the court in Sakovits v. Sakovits, 178 N.J.Super. 623, 631, 429 A.2d 1091 (Ch.Div.1981), "a brief hiatus between high school and college is becoming common place."   While the period from 1991 until now undoubtedly represents more than a "brief hiatus", the court is satisfied that the present application  should not automatically be barred because Brian was previously emancipated.

Brian's present request for financial assistance, after being deemed emancipated, is analogous to a change of circumstances application contemplated by Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980).   To fairly evaluate his need for financial assistance, Brian must file a current case information statement pursuant to Rule 5:5-4(a) and he must disclose all relevant information pertaining to his own ability to meet his financial needs.   Before Mrs. White will be court ordered to provide discovery, Brian must demonstrate a prima facie need.  Lepis at 158, 416 A.2d 45.

Based on the logic of that White case, I would think the application for support would have to be filed against both parents (although I have an issue with allowing such an application to go forward given the length of time "Brian" was emancipated.

Robert E. Goldstein, Esq.
Drescher & Cheslow, P.A.

610 Bridge Plaza Drive

Manalapan, NJ 07726

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Member, Middlesex County Bar Association, New Jersey Association for Justice and New Jersey State Bar Association

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White v. White, 313 N.J. 637 (Ch. Div. 1998) :

At the time of the divorce trial in 1995, Brian was on active service in the United States Navy and, unlike his sister, he was deemed emancipated.   Since Brian now seeks a court order declaring that he is unemancipated, he has the burden of proving that he is entitled to the relief he requests.   In view of Brian's legal status, his father, Mr. White, is not authorized to act on his behalf.   Therefore, Brian's request to intervene so that he may independently pursue his claims is granted.

There is no doubt that from 1992 through 1996 Brian was emancipated.  Slep v. Slep, 43 N.J.Super. 538, 543, 129 A.2d 317 (Ch.Div.1957).   While serving in the Navy, Brian moved beyond the sphere of influence and responsibility exercised by a parent and obtained an independent, self-supporting status of his own.  Bishop v. Bishop, 287 N.J.Super. 593, 598, 671 A.2d 644 (Ch.Div.1995).   In fact, Brian was probably emancipated sometime in 1991 after he discontinued his studies at Seton Hall University and Morris County Community College.   Nevertheless, Brian has recently demonstrated an ability to successfully pursue a college education.   Such perseverance is to be commended and encouraged.   As noted by the court in Sakovits v. Sakovits, 178 N.J.Super. 623, 631, 429 A.2d 1091 (Ch.Div.1981), "a brief hiatus between high school and college is becoming common place."   While the period from 1991 until now undoubtedly represents more than a "brief hiatus", the court is satisfied that the present application  should not automatically be barred because Brian was previously emancipated.

Brian's present request for financial assistance, after being deemed emancipated, is analogous to a change of circumstances application contemplated by Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980).   To fairly evaluate his need for financial assistance, Brian must file a current case information statement pursuant to Rule 5:5-4(a) and he must disclose all relevant information pertaining to his own ability to meet his financial needs.   Before Mrs. White will be court ordered to provide discovery, Brian must demonstrate a prima facie need.  Lepis at 158, 416 A.2d 45.

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."

Fall and Romanowski,  Relationships Involving Children, "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., 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, 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."