Wednesday, May 31, 2017

Last Year's Change in the Laws Regarding Emancipation in New Jersey

Emancipation of a Minor in New Jersey

New Jersey has recently changed its conditions for emancipation of a minor to make it less of a matter of discretion for the deciding judge when deciding whether or not to terminate child support obligations when a child reaches eighteen years of age. Prior to the law being amended in January 2016, the emancipation of a child would occur under when a child reached age 18 unless certain conditions applied such as a child becoming financially independent. Howevcr, under earlier law, there was no automatic emancipation of a child at the age of majority, it was always left up to a judge’s discretion.

Emancipation could be extended beyond age 18 for a number of reason. First and foremost, is if there is a matrimonial settlement agreement or court order that extends the time of a child to receive child support. If a child is suffering under a disability that prevents that child from being self-sufficient, that could potentially defer the ending of child support obligations indefinitely. Likewise, if a child attends a college or vocational school, the child would still be entitled to child support. However, if a child is enrolled in a military academy like West Point or Annapolis, the child is deemed to have entered active military service and thus is considered emancipated. Bishop v Bishop, 287 N.J. 593 (1995). Depending upon family circumstances, this can even extend to graduate school.

Termination of child support could occur by changed circumstances. These can include a child’s death, marriage, termination of the parent’s parental rights, or entry into the military. It may also occur if a child graduates high school but does not continue school beyond high school. The child must no longer be depending upon the parents for support. Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997).

Under the new statute N.J.S.A. 2A:17-56.67, a number of changes occurred as of January 2016. Prior to the change many property or marital settlement agreements provided that child support was capped at age 23 whereas now, emancipation operates by matter of law at age 23. Similarly, termination of child support is to occur automatically when the child marries, enters military service or dies or reaches age 19 unless exceptions occurred which included the above-mentioned conditions like school, disability, or out-of-home placement through the Division of Child Protection and Permanency. 

Probably the most significant change is that the emancipation should be automatic unless there is a reason not to emancipate the child. The new statute provides that child support terminates by operation of law rather than by filing of a motion to emancipate or end child support by reason of changed circumstances. When Probation is involved, they are supposed to provide notices to parents of the proposed termination of child support when the child has reached the age of 23 which is the new cap when child support is to terminate. This notice is to be provided at least 180 days prior to the proposed termination date and then again at least 90 days prior to that date. In fact, Probation is supposed to cooperate with both parents by other means as well including text messages, emails or telephone calls. And rather than the non-custodial parent having to file to have the child emancipated, the custodial parent has the obligation to show why the child should not be emancipated.

So, all in all, the recent changes to the emancipation statute makes it more payor friendly, and helps restrict the discretion of the court. Before, when emancipation was sought for a child that turned age eighteen, a “fact-sensitive” inquiry was required to determine the right to continued parental support. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), a New Jersey Supreme Court decision. But now, the statute sets conditions when emancipation will automatically occur by reason of law, such as attaining age of 23, entering the military or other conditions set forth in this statute.

It also appears from the statute that the impact on child support orders would apply to orders that were issued before the enactment of the statute, so anyone who has a child support order, who knows for instance, that the child has attained the age of 23, should make sure that their child support obligation is terminated. In those instances where there is a reason to extend support beyond that age, for instance for a disability, the court will have to find a different condition for providing such financial support other than under the provision of child support.

 Anthony Van Zwaren, Esq.

No comments: