Child Support Obligation Cannot Be Waived

Smiling Children

Smiling Children

Back in May, the New Jersey Appellate Division rejected plaintiff’s argument that an order entered three years earlier denying defendant’s request for child support was absolute, thus relieving her of the obligation to support the parties’ un-emancipated child until and unless defendant could prove changed circumstances warranting modification of the prior order’s provisions. 20-2-7960 Colca v. Anson, App. Div. (Lihotz, J.A.D.)

In New Jersey, child support is based on Child Support Guidelines. Generally speaking, it is calculated by taking the income of each parent, as well as other factors, and then using various formulas as determined by a committee of the New Jersey Supreme Court.

As a matter of law, child support obligation cannot be waived. The right to receive child support belongs to the child and thus cannot be waived, modified, or negotiated away by the child’s parents.  Even if there is a prior court order denying request for child support, a parent still has obligation to support a child until that child’s emancipation.

Moreover, even if the matter was previously decided by the court, a change in circumstances may warrant modification of the child support order. Child support order can be changed by the court if one parent can show there has been a real, substantial and unanticipated change of circumstances since the last support order was issued.  That may include one of the parent’s losing a job, getting a new better paying job, getting a good raise, or getting a large inheritance.

Typically, child support can only be terminated if there is a significant change in circumstances, such as the child’s death, a termination of parental rights, adoption, marriage, armed forces sign-up, full-time employment, or graduation from high school if the child does not plan to attend college. What this actually means is that child support can end when the child is expected to be self-supporting. As such, a severely disabled child who will never be self-sufficient and/or self-supporting may never be emancipated.  

A parent has a legal obligation to pay for child support until that child is emancipated. As a general rule, parents are under no duty to support their child after the age of majority. The age of majority is 18 years of age. It must be noted, however, that child support does not automatically end once the child becomes 18. Reaching the age of 18 is prima facie proof of emancipation, but it is not a conclusive proof. Also, New Jersey has no fixed age or specific event triggering the end of support, unless it is stated in a court order. In some cases, support may continue beyond the age of 18 or high school graduation, as family courts will usually not emancipate a child if he or she is pursuing higher education (college and in some cases even a graduate school).

The emancipation of a child occurs when the fundamental dependent relationship between the parent and the child is concluded, or simply said a parent-child relationship ends. Either, the parent relinquishes the right to custody and is thus relieved of the burden of support, or the child becomes independent and/or self-supporting. Every case is always fact-sensitive and the essential inquiry is whether the child has moved beyond the sphere of influence and responsibility of his or her parents. Additionally, the child must obtain an independent status of his or her own.

To emancipate a child, one of the parents must ask the court to end or change the support order, or both parents can agree and sign a request for case closure. The emancipation of a child does not automatically excuse the payment of accumulated arrearages. Also, a parent who is filing a motion for emancipation has the burden of proving the facts to support it.

Factors determining whether a child has obtained an independent status include: (a) the child’s needs; (b) the child’s interests; (c) the child’s independent resources; (d) the family’s reasonable expectations; (e) the parties’ financial ability; and (f) any relevant factor.

About teperlaw

I am an attorney practicing family law, immigration and wills and estate planning. You can find out more about me and my firm by visiting my website at: 106 W. Franklin Ave. Pennington, NJ 08534 (609) 737-3030
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