Emancipation of a Child and Stopping Child Support in New Jersey
One of the most common questions I receive as a New Jersey family law attorney is "My child is 23 and graduated college- why am I still paying child support?" The answer to this questions is rooted in New Jersey law. The law requires a parent to take an affirmative step to terminate child support. A parent must file a motion for emancipation.
The motion for emancipation is typically filed in the county where the divorce was finalized. The motion must also be sent to the other party - typically the parent receiving child support. The other parent is then given time to file a response to the motion for emancipation. The other party may also file a cross-motion in which they ask the court to enter an order for other relief. One common example of this is when a parent opposing a motion for emancipation asks the court to order the parent paying child support to pay additional sums, such as increased child support, extracurricular expenses, or unreimbursed medical expenses.
Along with the motion for emancipation a party can file documents to support his or her position. For example, a parent seeking to emancipate a child may submit documents to show that the child has graduated from college, or documentation that the child has a full-time job and is living on his own. These types of documents are typically submitted as exhibits along with the motion and supporting certification.
After each side has submitted their documentation a hearing may take place. Either side may request oral argument on the motion, or the motion can be heard "on the papers" meaning that the judge will decide the motion based on the paper evidence that was submitted by each side.
The Standard Used to Decide the Motion
The standard the court uses to decide a motion for emancipation is whether or not the child has moved "beyond the sphere of influence" of the parents. This is a factual question that requires consideration of several factors. Those factors include:
- The child's age
- The child's education
- Whether or not the child is enrolled in school
- If not, did the child drop out or graduate?
- If not in school, does the child plan on returning to school?
- If the child is in school, is it full time or part time?
- Where does the child live?
- Does the child work?
This list is certainly not exhaustive. Indeed, any factor that helps determine whether or not the child has moved beyond the parents' sphere of influence. No single factor is dispositive. The fact that a child did not complete college in four years will typically not, without more, result in the granting of a motion for emancipation. If, on the other hand, the child has not completed college but is living on his own and working, the motion will likely be granted.
In some instances child support is addressed in the parties property settlement agreement. For example, a property settlement agreement may specifically state that a child will be emancipated at age 18, or after graduating high school, or upon the occurrence of some other event. In that case, the language of the property settlement agreement (PSA) typically takes the place of the New Jersey emancipation law. Because of this, most courts will want to see a copy of the parties judgment of divorce and property settlement agreement before considering a motion for emancipation.
A second consideration is the recalculation of support for other children. In New Jersey child support is calculated by entering financial and parenting data into a computer program. After a child is emancipated, the support for any remaining children will be recalculated.