1. My son just reached the age of 18. Do my child support payments now automatically end?

No. In New Jersey, emancipation occurs only when a child reaches 18 years and/or becomes financially independent. A child is not automatically emancipated at the age of 18; the courts determine emancipation on an individual basis. 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. 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.

Most courts will not terminate child support if a child is enrolled in college. Moreover, when a child finishes college, most judges will not emancipate him or her until the summer is over. They prefer to give the young college graduate at least a summer to seek permanent employment before he or she is “cut loose” in the real world.

2. When can I stop paying child support?

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. See Johnson v. Bradbury, 233 N.J. Super. 120 (App. Div. 1989). It must be emphasized, however, that child support does not automatically end once the child reaches 18. There is no fixed age of emancipation, and family courts routinely continue child support through the college years. Therefore, it is not unusual for a parent to support a child through his or her 20’s in order for all avenues of higher education to be explored.

A termination of child support can only occur if there is a 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 where the child does not plan to attend college.

 
3. Which standard of law does a court use to determine emancipation?
        
The emancipation of a child occurs when the fundamental dependent relationship between the parent and the child is concluded. The parent must relinquish the right to custody and is relieved of the burden of support. 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. Moreover, the child must obtain an independent status of his or her own. See Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997); Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995).

Reaching the age of 18 is prima facie proof of emancipation, but not conclusive proof. As noted, a court will usually not emancipate a child if he or she is in college. A parent who is filing a motion for emancipation has the burden of proving the facts to support it. Ribner v. Ribner, 290 N.J. 66 (App. Div. 1997).

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.

4. What are some typical events that trigger emancipation?

It has been held that a child’s enrollment as a cadet at West Point resulted in emancipation. Upon enrollment, the child is deemed to be on active duty in the military. Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995).

A child living apart from his or her parents while under the age of 18 does not in and of itself result in emancipation. See Quinn v. Johnson, 247 N.J. Super. 572 (Ch. Div. 1991).

An unmarried child under the age of 18 who gives birth and who continues to be supported by her parents is not emancipated. See Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997).

A child’s disability may militate against emancipation. In the case of Kruvant v. Kruvant, 100 N.J. Super. 107 (App. Div. 1968), the court held that a 25-year-old adult child’s pre-existing mental illness precluded full emancipation.
 

5. My son recently took a “break” from college and is now working full-time. My son insists that his hiatus from college is temporary. If I file for his emancipation, will I prevail?

Each emancipation case is reviewed on its individual facts and circumstances. In my experience, most courts would emancipate him. However, some judges would insert language in the emancipation order specifying that child support could be reinstated if the child returns to college. Illustrative is the case of Keegan v. Keegan, 326 N.J. Super. 289 (App. Div. 1999), where the court denied an emancipation motion concerning a child who was working full-time while on a temporary hiatus from college. The appellate court noted that a brief hiatus between high school and college is commonplace. Moreover, the court held that a child’s right to parental contributions towards college costs should not be summarily denied.

6. My son flunked out of high school and is a drug addict. He is now in a rehab program and is trying to get his GED. I love my son, but I am tired of paying child support. Will a court grant my application to emancipate him?

Probably not. Courts are always very sympathetic to the child. Illustrative is the case of L.D. v. K.D., 315 N.J. Super. 71 (Ch. Div. 1998), where the court denied a motion for emancipation under similar facts.

7. My property settlement agreement (PSA) provides that my child support payments automatically end once my children are 18 years of age. Is this provision enforceable?

No. The right to receive child support belongs to the child and it cannot be waived, modified, or negotiated away by the child’s parents. This principle is espoused in Patetta v. Patetta, 358 N.J. 90 (App. Div. 2003), where the court held that a PSA provision which anticipated the emancipation of the parties’ child when that child reached the age of 18 was unenforceable.

8. Should my property settlement agreement (PSA) contain specific terms with regards to emancipation?

Since emancipation is fact-sensitive, it is essential that your PSA has a definition of “emancipation” so that there is no question of when child support obligations end. A PSA traditionally lists the following as emancipation events:

a. Reaching the age of 18 years or the completion of post-secondary education (college), whichever occurs last.

b. Marriage of the child.

c. Permanent residence away from the parents’ residence, except that residence at boarding school, camp, or college shall not be deemed a residence away from the parents.

d. Death of the child.

e. Entry of the child into the armed forces.

f. A child obtaining full-time employment after reaching the age of 18 years, except that a child engaging in full-time employment during vacation or summer periods while attending high school, college, or other post-secondary education on a full-time basis shall not be deemed full-time employment.

9. What are the important New Jersey decisions on the issue of emancipation?

a. Baldino v. Baldino, 241 N.J. Super. 414 (Ch. Div. 1990) (Child’s drug addiction did not constitute legally accepted handicap triggering continued support obligation after emancipation).

b. Bishop v. Bishop, 287 N.J. Super. 593 (Ch. Div. 1995) (Father’s support obligation terminated when his 20-year-old son enrolled at the United States Military Academy at West Point and was declared emancipated).

c. Bowens v. Bowens, 286 N.J. Super. 70 (App. Div.1995) (An anti-retroactive child support modification statute did not bar the elimination of arrearages accruing subsequent to the date of son’s emancipation).

d. Bundschuh v. Bundschuh, 2006 WL 2355081 (N.J. Super. Ct. App. Div. 2006) (Recognizing retroactive modification of support by declaring children emancipated on a past date, when they turned 18 and chose not to continue their education).

e. Conway v. Conway, 2006 WL 2418839 (N.J. Super. Ct. 2006) (The court validated a settlement agreement that required the parties to pay tuition after the child took a hiatus from college).

f. Dolce v. Dolce, 383 N.J. Super. 11 (App. Div. 2006) (The court upheld a settlement agreement where the husband promised to pay child support until the son’s 23rd birthday or until he completed four years of college. This case recognized the validity of a consensual agreement past the age of majority which set an emancipated date by the consent of the parties).

g. Fillipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997) (This case addressed the issue of emancipation when a child becomes pregnant).

h. Gac v. Gac, 186 N.J. Super. 535 (2006) (The court held that college contributions were not required where financial assistance was not requested until after the child graduated and where the husband sought to terminate child support).

i. Newburgh v. Arrigo, 88 N.J. Super. (1982) (The right to support for education expenses did not necessary terminate when decedent’s son reached the age of 18. This case also set forth a list of factors to be considered in a claim for college tuition contribution).