The concept that a child’s disability can delay or prevent emancipation is not a new one. In fact, it has been part of the decisional law for decades. Moreover, the parties cannot contract away the obligation to support a disabled child.
Despite the fact that this has been the law for some time, this issue arose again in Bencivenga v. Bencivenga, an unreported (non-precedential) Appellate Division decision released on January 8, 2024.
In that case, the parties divorced in 2017. At the time, it was contemplated that their younger child, R.B. would enter the Navy and the parties’ agreement contemplated this. In fact, the agreement said that if she did not go into the Navy, the parties were to confer about her status and whether there was a child support obligation, which they agreed to divide equally. The agreement also had an emancipation provision that said that the age of 23 would trigger emancipation.
Needless to say, R.B. did not enter the Nav. However, she was rejected by the Navy, the parties agreed there was no child support obligation for her, and they allowed R.B. to make her own decisions, including living where she wanted. R.B. was sexually assaulted when she was eighteen years old. From that time to the present, she has experienced homelessness, sleeping in her car, or at friends’ homes.
I n 2019, R.B. underwent a court-ordered inpatient psychiatric hospitalization due to suicidal ideation and an “active suicide plan.” Thereafter, she received outpatient treatment. In August 2020, she was approved for Social Security Disability benefits. As of the time of the motion, she received $875.25 per month because she was considered “in transition” due to her lack of a permanent residence. Other than SSD benefits and medical and dental insurance R.B. receives from defendant’s employment, plaintiff paid all of R.B.’s expenses.
In June 2022, R.B. psychiatrist opined that she was incapable of managing most of her own affairs or maintaining employment. Plaintiff requested financial assistance from defendant before R.B.’s 23rd birthday and when he refused, she filed a motion. Included in her papers were the psychiatrist’s reports as well as a report from a neuropsychologist who opined that that her functioning was “sabotaged by “… sabotaged by her ongoing irritative brain lesions diagnosed beginning at the age of [ten] or [eleven], and even prior, causing the totality of the above-cited diagnostic conditions that render her, essentially, unable to function as an adult at this time.” He further opined that “… she is not able to function without ongoing and extreme parental support due to the fact that [R.B.] is not able to reach independent status due to her preexisting disabilities that have actually worsened over time.” He further opined that she was going to require continued parenting support due her issues.
Notwithstanding, the trial court, without hearing oral argument, and without referencing the reports, denied plaintiff’s motion and deemed R.B. emancipated because she was out of the parties’ “sphere of influence because she did not join the Navy after graduating from high school, neither parent paid support after her 18th birthday and has not lived with either party since that time.
The Appellate Division reversed the trial court and remanded the matter for a plenary hearing. In doing so, the court reiterated the law on emancipation, particularly, when there is disability. Therein, the Appellate Division noted:
“Prior to addressing whether parental support is required for a child who reaches majority, the pivotal question is whether the child remains unemancipated.” Ricci v. Ricci, 448 N.J. Super. 546, 573 (App. Div. 2017). A child with disabilities will be considered unemancipated “if the child suffers
from a severe mental or physical incapacity that causes the child to be financially dependent on a parent.” N.J.S.A. 2A:34-23.
The Court went on to discuss the change in the law that occurred in 2016 which did not change the concept of parental support in the face of a child’s disability, but rather, how support is obtained. The Court noted:
The law was significantly changed in 2016 when N.J.S.A. 2A:17-56.67 was enacted to create an automatic termination of support when a child reaches the age of nineteen, subject to continuation upon application by the residential parent or the child leading to a court order. It became effective on February 1, 2017. Pursuant to the statute, all child support terminates once a child turns twenty-three. The statute is applicable even when the child has a mental or physical disability. N.J.S.A.
2A:17-56.67(e)(2). However, if a parent needs to obtain financial assistance for a disabled adult child, the statute allows the court to order “another form of financial maintenance for a child who has reached the age of [twenty-three].” Ibid.
Because the Appellate Division noted that the record contained competent proof that R.B. “suffers from a myriad of emotional, psychological, and psychiatric problems that prevented her from entering the Navy or supporting herself (citing a pre-2016 case just in case anyone was wondering whether the case law that predated the new statute was still good law), the issues warranted a plenary hearing.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.