On Tuesday, January 19th, Governor Christie took a break from his busy presidential campaign to sign several new pieces of pending legislation, one of which was New Jersey's pending emancipation statute that dramatically impacts upon child support and when/how it terminates. The new law, which takes effect on the first day of the 13th month after its enactment – February 1, 2017 – is applicable to all child support orders issued prior to, or, or after its effective date.
Critically, the law is more payor friendly than that which previously existed only in case law, providing certainty as to when and how child support will terminate, and implements a form of "capped" age of 23 for termination, as detailed below. It also alters the rebuttable presumption that child support terminates when a child reaches age 18. The language and procedural specifics will, in a manner similar to what has/will occur with the amended alimony law, most certainly result in future litigation over what such language means and how it should be applied.
With that said, let's take a look at the important components of the new emancipation law and what it means:
Termination of Child Support
The law provides that, unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.
Child support shall also terminate when a child reaches 19 years of age unless:
- another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age;
- a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or
- the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.
In response to a notice of proposed termination of child support, a custodial parent may submit a written request with supporting documentation to the court including a projected future date when support will terminate, seeking the continuation of child support beyond the date when the child reaches age 19 in the following circumstances:
- the child is still enrolled in high school or other secondary program;
- the child is a student in a post-secondary education program and is enrolled for the number of hours or courses the school considers to be full-time attendance during some part of each of any five calendar months of the year; or
- the child has a physical or mental disability as determined by a federal or State government agency that existed prior to the child reaching the age of 19 and requires continued child support.
A custodial parent may also file a motion with the court seeking to extend the obligation to pay child support beyond the date the child reaches 19 years of age due to exceptional circumstances as approved by the court.
Interestingly, if a court orders the continuation of child support beyond age 19, it must also provide in the order "the prospective date of child support termination." If the payor parent disagrees with the court's decision to continue child support beyond the child reaching age 19, he or she may file an application seeking relief from the obligation.
Probation Termination Notices
Matters involving child support obligations administered through Probation shall require that both parents receive at least 2 written notices of a proposed termination of child support, which shall include information and the request form to facilitate the continuation of child support beyond the date when the child turns 19. The first notice will be sent 180 days prior to the proposed termination date, and the second at least 90 days prior to the proposed termination date (the second notice, however, shall not be required if a custodial parent's request for continuation is pending or a new date of child support termination has been established).
Age 23 as a "Cap" for Termination
Critically, the new law provides, "the obligation to pay child support shall terminate by operation of law when a child reaches 23 years of age," except that a child beyond age 23 can still seek an order requiring the payment of other forms of financial maintenance or reimbursement from a parent as authorized by law (so long as it is not payable or enforceable as child support). In addition, a court, based on an application from a parent or child, can convert – due to exceptional circumstances (such as a physical/mental disability) a child support obligation to another form of financial maintenance for a child who has reached the age of 23.
Unallocated Child Support for Two or More Children
The new law codifies that if there exists an unallocated (not specifying the amount for each child) child support order for two or more children and the obligation to pay for one child terminates, the existing support obligation shall continue. Of course, this is no way prevents the parties from coming to a resolution of the issue to avoid the time and expense associated with litigation.
If the support for such children was allocated – rather than unallocated – and support for one terminates, the amount of child support for the remaining children shall be adjusted to reflect only the amount allotted for the remaining child/children.
Arrears Existing at Termination
If support arrears exist when support terminates under the new statute, such arrears will remain due and enforceable. The new law provides how payment for such arrears will be made, as the "sum of the recurring child support obligation in effect immediately prior to the effective date of termination plus any arrears repayment obligation in effect immediately prior to the effective date of termination" unless otherwise ordered.
Impact on Foreign Support Orders
The new statute shall not apply to child support provisions contained in orders/judgments entered by a foreign jurisdiction and registered in New Jersey for modification or enforcement under the Uniform Interstate Family Support Act ("UIFSA"), or a law substantially similar to New Jersey's prior Uniform Reciprocal Enforcement of Support Act ("URESA").
Impact on Support While Child in College/Post-Secondary Educational Institution
The law unambiguously provides that it does not require or relieve a parent from paying "support or other costs while a child is enrolled full-time in a post-secondary education program."
Important Miscellaneous Points
Any party may also still seek to terminate child support for any reason other than that provided in the new law. Also, the law confirms that it does not "prohibit the parties from consenting to a specific termination date for child support that does not exceed the date a child reaches 23 years of age, or to any other financial arrangements for a child that are not designated as child support, subject to the approval of the court." This language is fascinating because many practitioners previously argued that language in the emancipation section of a settlement agreement terminating child support at 23 as a "catch all" was somehow against public policy. The argument is largely now irrelevant, as were many such arguments made about the alimony law prior to its amendment.
In addition, a child support payor can petition the court to terminate child support for good cause prior to the child turning age 19, or contest the extension of child support beyond when the child turns 19.
This law will have a substantial impact on matrimonial practice, and is certainly more payor friendly than the legal standard previously existing in case law form – a continuing trend also found in New Jersey's amended alimony and premarital agreement laws. Practitioners should consider incorporating new language and references to the law in their settlement agreements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
