“I want to sign my rights away.” “He’s gonna be 18 in June. I can stop paying child support then.”
I have often heard these and other similar comments. For the most part, however, such thoughts are wishful thinking and not reflective of current New Jersey law. But what happens if these mistaken beliefs come before the court in the form of a proposed consent order which a judge is asked to sign, or in a marital settlement agreement presented at an uncontested final divorce hearing?
First, under such circumstances, an experienced attorney will advise his/her clients that their child emancipation expectations are likely against New Jersey public policy. So, questionable child emancipation language rarely appears in attorney-drawn orders or agreements. Second, a judge will likely refuse to sign a consent order containing premature child emancipation language despite consensus between the parents. And third, should dubious emancipation language “slip through the cracks,” a subsequent judge or an appellate court will probably not enforce the questionable provisions finding them to be at odds with New Jersey public policy. It should be noted that with marital settlement agreements judges rarely, if ever, read them at an uncontested divorce hearing. Judges are simply interested in assuring that the parties have voluntarily signed the agreement without coercion; that they understand it and recognize that they are giving up their right to trial; and that they wish to settle the case according to the terms of the agreement.
Child emancipation is almost always interwoven with termination of child support payments. The guiding principle is that child support belongs to the children. The parent receiving the support holds it in constructive trust for the children. The money is to be spent on and for the children. To be sure, in a number of cases the child support monies are spent by the receiving parent on personal items that do not benefit the children. Unfortunately, the courts do not have the resources to monitor parental use of these funds. In fairness, court personnel and related state and county agencies cannot be expected to micromanage the spending habits of divorced and separated parents.
“Emancipation” is a legal concept denoting the end of the fundamental, dependent relationship between parent and child. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). It is not automatic and “... need not occur at any particular age …” Newburgh v. Arrigo, 88 N.J. 529, 543 (1982). Upon emancipation, legal and physical/residential custody rights and responsibilities are no longer vested in the parents and child support ceases.
N.J.S.A. 9:17B-3 holds that once a child reaches the age of majority, now eighteen, a parent has established “prima facie, but not conclusive, proof of emancipation.” The burden of proof then shifts to the party seeking to continue the child support obligation. Next, the court embarks on a critical evaluation of the existing circumstances—the child’s needs, interests, independent resources, family expectations, and the parties’ financial abilities, among other things. Newburgh v. Arrigo, supra, at 545.
If the child joins the armed forces, gets married, obtains employment and his/her own residence at a separate location, these are all factors indicative of emancipation.
Another consideration is the responsibility of the parents in New Jersey to provide for payment of the children’s undergraduate college education after all loans, scholarships and grants upon immediate, fulltime (twelve credit hours or more per semester) enrollment in college. This duty was originally set forth in the Newburgh case referred to above. While Newburgh does not provide detailed guidance for trial judges in how to implement its philosophy, a common convention among New Jersey Family Division judges is that students are given five years to obtain a Bachelor’s Degree. Thus, the support obligation may continue until the child is twenty-three.
This is just a brief synopsis of a few of the many issues that may arise when parents are confronted with the child emancipation question.